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7.46 pm

Sir Alan Beith (Berwick-upon-Tweed) (LD): My intervention in this debate as Chairman of the Justice Committee follows contributions from the Chairmen of the Standards and Privileges Committee and the Joint Committee on Human Rights, and all three Committees have serious concerns about aspects of this Bill. If that, combined with speeches such as that which we have just heard, does not make the Government realise that they have got to rethink substantial parts of it and step back from this great rush, I do not know what will.

It was the Justice Committee that sought the memorandum from the Clerk of the House that has been at the centre of the debate, and we will take evidence from him and others tomorrow at 5 o’clock. As the Lord Chancellor has pointed out, the programme
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motion defers some of the relevant clauses until Wednesday and we intend to see that Tuesday’s oral evidence is printed overnight so that it will be in the hands of Members on Wednesday, but that is still not a satisfactory way of dealing with a matter of this kind.

I welcome the transfer of responsibilities for allowances and pay effectively to what is at this stage a combination of this new body, the Senior Salaries Review Body and the Committee on Standards in Public Life. We need to put that work outside Parliament—to contract it to somebody else—as it should not be done by us. The new body needs to be a more effective paying and withholding body for pay and allowances. I say “withholding” because I do not regard the refusal to pay an allowance as a disciplinary measure. I think that is the proper application of a scheme of allowances and expenses. The role I see for the body set up under the Bill is to operate the scheme, to pay allowances when it considers they have been appropriately claimed within the rules and not to do so otherwise, and to be in a position to be entirely firm about how it handles such matters, which has not always seemed possible for the Fees Office in the past, and has led to this very unsatisfactory situation.

Protection, however, needs to remain around the rights of Parliament. That protection is underpinned in one respect in the Bill by the recognition that Parliament should take any disciplinary processes that arise from things going wrong in the system once the existence of a possible disciplinary offence has been identified. I am glad that that principle is recognised, as it is a very important one, but that does not solve the problems. The inclusion of new criminal offences has raised the problem of double jeopardy, which needs to be considered seriously, and several aspects of the drafting impinge on rights in the European convention on human rights, as the Chairman of the Joint Committee on Human Rights has explained. Several clauses appear to infringe the principle that Parliament and the courts do not call into question each other’s decisions, as stated in article 9 of the Bill of Rights.

I want to turn to the constitutional areas that the Clerk identified in his evidence to us. Happily, I can dispense with what I was going to say about clause 6 because of the Government’s welcome decision not to proceed with it. Clause 7 raises questions, however. As the Clerk says, for example:

a Member might have taken the matter to court, the court might have found the initial reference to be unreasonable and Parliament might have then taken action on it—we would be a short step from

Even clause 7 presents a problem.

Mr. Grieve: I agree with the right hon. Gentleman’s analysis. Is there not another problem? There has been some discussion about the existing powers of the House to discipline its Members. Of course, they are outside the European convention on human rights, but they are also quite rough and ready. I suppose the extreme sanction is expulsion, and there is an acceptance that it is then a matter for the electorate to decide what it will
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do. However, we are creating through the Bill an entire architecture of punitive measures, all statutorily vaguely defined, that might impinge on a person’s reputation in a way that parliamentary sanctions never would have in the past.

Sir Alan Beith: Yes. To some extent, the reputational damage is inevitable, because of the nature of the issues and the way in which they have been highlighted in the press. To some extent, that might seem to be justified, but it means that we have to pay rather more attention than we have hitherto to the human rights dimensions and the need for due process, for example. I shall come on to another aspect of that before I conclude, but I also want to mention clause 8 and the enforcement powers, with which I do not think we should be proceeding at this stage. I believe that, as the Clerk makes clear, they give rise to considerable concern. He says:

That might—and probably will—then make them open to challenge before the courts. As the hon. and learned Member for Beaconsfield (Mr. Grieve) mentioned earlier, the whole protocol business, with a list of bodies that, as far as I can see, is unlikely to be the permanent list because of the changes that keep taking place in the structure of government and the criminal justice system, is a puzzling element and one that could further draw us into proceedings in the courts, with potential for litigation.

I suppose I must concentrate on clause 10 because, after clause 6, that is the area that gives rise to the greatest constitutional concern. Clause 10(c) leaves us in no doubt that it is a head-on attack on the Bill of Rights. It directly quotes the Bill of Rights in order to define the area with which it is dealing:

In other words, notwithstanding the Bill of Rights, things will now be different. That is such a fundamental assault on a long-standing and accepted principle that I do not think that we should be rushing it through in three days of proceedings, especially when it is not necessary to do so in order to set up a body that can administer pay and allowances. If there is a rush, that is probably what the rush is for—to be seen to be setting up that body and, indeed, enabling it to start work and to be in a position to implement the detailed Kelly proposals. I can see that there is a case for trying to get that body set up during the forthcoming parliamentary recess, but none of that requires some of the other features that have been so rightly criticised in the Clerk’s analysis.

In his reference to clause 10, the Clerk points out the difficulty that is

Either one does so in a narrow way, in which case one creates an injustice under the ECHR, creating a situation in which evidence drawn from proceedings in the House can be used against the Member but not material that might be exculpatory to the Member, or one does so in a wide way, in which case one imperils free speech, people’s ability to give free evidence before Committees
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and all the other things that such procedures are designed to protect. We ought not to be proceeding with clause 10. Of course, we ought to be proceeding, as the Select Committee on Standards and Privileges said some time ago, with a privileges Act to ensure that we have a proper range of protection that can cater for some of the things that have now arisen.

It is abundantly clear from today’s debate that there is so much unease about those features of the Bill that we should not proceed with them in that way.

John Mann (Bassetlaw) (Lab): The unease is among Members of Parliament, is it not? It is not among the general public, who wonder why we have not managed to throw out people who are on the fiddle.

Sir Alan Beith: The unease among the general public is more than unease—it is anger, and a very real anger. It is not successfully addressed if what we do in the end is to create a process that undermines the rights of the public in other ways in the future without addressing that grievance. Rushing into legislation that would have the effects that I described earlier does not deal with the public anger. The setting up of an independent body to determine what pay and allowances we should receive and to police the paying and claiming of them goes some way to addressing that anger, and I welcome that. The House must ensure that it deals appropriately and effectively with those who break its rules, but it should not in the process take away the rights of our constituents. If it is going even to contemplate doing so, it should give the matter serious consideration.

At the end of the day, there is what I like to think of as a sort of Bradlaugh principle at stake here. The ultimate judge must be the electorate. Bradlaugh found that his colleagues in Parliament repeatedly refused to accept his insistence that a rule of the House was an unfair constraint on him—in his case, the rule requiring him to swear an oath that he as an atheist did not believe it right to swear. If a Member, like him, found that his colleagues in the House were unwilling to accept him as a Member on those terms, ultimately it would be the electorate who must be allowed to judge and to insist on sending him back to Parliament, saying, “We wish this man to represent us, notwithstanding the fact that he appears to have broken a rule that others find important.” That is a pretty fundamental principle. Of course, it is not an easy principle even for the Member affected, who might have to fight or even finance an election without the support of his political party, under procedures that we have seen operating in recent weeks in this House. However, it is the ultimate protection and the ultimate principle.

Before we get to that point, there must be proper due process as far as any person—in this case, a Member of the House of Commons who is accused of behaving improperly—is concerned. The processes that we create should not also, in themselves, take away protections that are designed to ensure that people can give evidence to Committees of this House without fear of a penalty for doing so and without fear that the evidence they give can be adduced in court in circumstances that they did not envisage.

The Government have been presented with a very strong case today. First, they should get ahead with the creation of a body that can administer pay and allowances
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and, secondly, they should not rush into things that would undermine some of the most basic freedoms, which go back to the Bill of Rights.

7.57 pm

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): This has been an interesting debate with some good contributions, including the speech from the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). It seems to me that everybody—apart from those on the Front Bench—is unanimous in their opinion. That does not happen very often, but it seems to be the case today. I would hope that the Secretary of State will appreciate that that is not because of any politicking, but because we are all concerned about the purports of the Bill. We are concerned about the way in which it is phrased and about various sections of it. We have heard from the Chair of the Joint Committee on Human Rights, the Chair of the Select Committee on Justice and so on. We have heard from the Clerk of the House. Voluminous objections have been raised about the Bill. That must count for something, otherwise what are we doing in Parliament? What is the point of our existence in this place if those fundamental points, which we have driven home time and time again in this important debate, are not adhered to?

Why is there such haste to deal with the issue? I shall tell the House why. It is a political imperative. On the day that the former Speaker announced that he was standing down, party leaders were invited to meet him in his chambers. The Prime Minister left that meeting with one thought in his mind, and one thought alone, which was to introduce some kind of statutory code of conduct overseen by an external body. When I say “conduct” I am talking about not only financial matters but everything in this regard. That was his thought for the day, he held a press conference accordingly and that was that. I suspect that that is why clause 6, which seemed to be a declaratory clause, was included; I think it was in the Bill to appease the Prime Minister. Thankfully, it has now gone, but some parts of the Bill are still objectionable.

My next point relates to the Register of Members’ Interests, the proposals on which result from a political imperative on the part of Labour Members who believe that there is some political advantage in introducing those proposals because, by and large, Opposition Members have more interests than they do. They believe that if they work things carefully and put out the idea that people with outside interests are not doing the job of an MP properly, they can gain electoral advantage too. Let us not beat about the bush, because we know why these things are being introduced.

We always say that we legislate in haste and repent at leisure, and the Dangerous Dogs Act 1991 has been mentioned—

Mr. Straw: It is still there.

Mr. Llwyd: The right hon. Gentleman, who is smiling, says that it is still on the statute book. I could also cite the Theft Act 1968, which omitted to repeal a provision in Wales whereby a person could be hanged for stealing a sheep. That is still law, but it is not good law. The fact that a law is in place does not make it any good.

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Mr. Straw: Is that your best point?

Mr. Llwyd: It is not my best point. I say to the right hon. Gentleman that I know many police officers who would not dream of referring to the 1991 Act because it is impossible to do anything with it. We know that Ministers are saying, “We must do something, because the public are furious”. The public are rightly furious, but they will be even more furious if we make a mess of this legislation, by trampling over the Bill of Rights and so on. The other example that one thinks of is the firearms legislation made following the awful incident that took place in Dunblane. Whereas the Dangerous Dogs Act 1991 is unenforceable, that firearms legislation made no difference, aside from the fact that it made life difficult for legitimate gun clubs.

I gave evidence today to the Kelly committee, which was interested in the haste with which this Bill was being introduced. Not only is the rate of progress an affront to the committee, but it might impinge on the work that it is trying to do. I do not propose to deal with my next point at length but, as has been mentioned, the Bill is, when all is said and done, a constitutional one. Such a Bill should never be the subject of emergency legislation—

Mr. Shepherd: On a guillotine.

Mr. Llwyd: As the hon. Gentleman says, neither should it be subject to a guillotine. We should have plenty of opportunity to examine matters on a proper pre-legislative basis and all the people I mentioned in an earlier intervention—the experts in constitutional law, the Clerk and so on—should be able to give evidence, because these are very important matters. I think we all agree that the current position is not sustainable and that it is probably right to farm out responsibility for allowances and salaries far out of the way of this House. I have never voted on a salary increase, because I did not think it right that I should do so. I believe I was offered the opportunity to vote on this issue once, in the 1992 Parliament, but I declined to take it because I did not think it was right to do so. I am happy for all that to be farmed out, but to confuse that with responsibility for conduct at large is dangerous and we should heed what the Clerk has had to say about that and, in particular, about clause 10.

The Independent Parliamentary Standards Authority will be the body to oversee conduct on allowances and so on. As a member of the Standards and Privileges Committee, I have known many instances when there has been not only a finding against a Member, but an apportioning of blame against the Department of Resources. In such circumstances, the new body would be judge and jury in its own court, so would it feel free to criticise its own department? I rather doubt that it would, so a conflict will obviously arise out of that arrangement.

The statutory basis for the code of conduct—the declaratory clause that I mentioned—has now gone, but many concerns remain, such as the point about privileges, article 9 of the Bill of Rights and clause 10. The clause is very worrying and it has been extensively commented upon in today’s press and again this evening. The protection of privilege is a vital tool for everyone in Parliament, because it ensures that free speech is available to us all.
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We politicians refer ad nauseam to the fact that free speech is the beacon of democracy, but that is because it is and must remain so.

On a more mundane level, we all encounter cases where a company tramples on an individual’s rights and acts badly towards that individual, but they have no money to take action against the company. Bringing such matters to this Chamber under privilege, albeit on a limited number of occasions, is useful and may well redress the balance, and that is very important. We know that there is an issue to address in respect of witnesses giving evidence. If they are not covered by privilege, I do not know whether they will be completely candid; the proposal in the Bill could mean that the Committee system in this place would fall into disrepute. We begin to erode the principle of privilege at our peril. We do not lightly refer to the Bill of Rights and we do not make reference to it in every debate in this place, but it is of vital constitutional importance that privilege is retained.

It is unusual for the Clerk to express his views on things of this kind in the manner that he has today. I believe that he did so because of the vital importance of this matter and that he was right to do so, because we need his expertise in this regard. He makes the point by saying the following:

He goes on to say:

Free speech in Parliament is essential if abuses are to be examined, including the abuses of Parliament itself.

This debate has been a good one and very serious points have been made. I have not seen such unanimity across political parties as on this issue. I took part in the pseudo-pre-legislative scrutiny part of the Bill and, with great respect to the Justice Secretary, I must tell him that he shifted position many times on many amendments. He accepted many amendments and was reasonable throughout that particular part of the Committee stage, but that just makes that point that this has been a bad Bill from the very beginning. The fact that although it has been amended on several occasions by several Members around that table, it is still in its current condition now makes the point. I have no criticism to make of the right hon. Gentleman, or of his colleague, the Leader of the House, because they were doing their job, but this Bill was rotten from the beginning and it remains rotten now—it is a dangerous Bill too.

8.8 pm

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