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30 Jun 2009 : Column 195
5.15 pm

In that capacity, I propose that if we are going to have someone as eminent as, let us say, a former Lord of Appeal involved in these processes, he should be the commissioner and not a member of IPSA. He should be involved with the investigations, the adjudication of rules, the consideration of evidence and the establishment of facts in a fair and impartial way, which is what a judge is trained in being skilled at, rather than just a member of this quango.

I just leave that question on the table for the Lord Chancellor to consider. I welcome the idea of a judge having a role in the process, but it should be on the investigation side, and not just as a member of a quango.

Mr. Heathcoat-Amory: I am grateful to you, Sir Alan, for selecting my starred amendments in your position as Chairman of this Committee. That is, perhaps, a recognition of the fact that we are all in a tremendous rush and it is an abuse of the procedures of this House that a constitutional Bill of this importance is being treated as an emergency. The Government have an emergency, but the constitution does not, and it is wholly wrong that we are having to table complex amendments and have them considered extremely quickly.

None of the amendments I have tabled is in any sense a recognition that this Bill can be adequately improved. I think it is irretrievably a bad Bill, which is why I voted against it. However, in accordance with the spirit that Committees are supposed to have, I have tabled some amendments to try to correct some of the grosser abuses and to question the Government about their proposals.

Amendments 50 and 51 remove the requirement that the chair of IPSA must be appointed by Her Majesty the Queen. I have also included other members of IPSA in another amendment, because I am puzzled about why these need to be royal appointments. Therefore, I have this question for the Justice Secretary: what additional rights and status does this give them? Is it intended to elevate the importance of IPSA? That is hardly necessary, as it is already the supreme quango, at the pinnacle of the quango state; so I want to know what it is that royal appointment brings.

Sir Patrick Cormack: Perhaps it is so that five Members can be arrested at some stage.

Mr. Heathcoat-Amory: My hon. Friend makes an historical illusion, which is relevant because a part of our history—certainly of the history of this place—is an attempt to keep royal power at bay; so, again, it is rather puzzling that we are importing into this Bill, quite unnecessarily in my view, a system of royal appointment.

I suspect that the truth is that this is a kind of proxy for the Executive. They want to appoint the chair and members of this new quango. So my question to the Secretary of State is: what does this bring to the party? If it has no effect, why are we doing it? If it does have an effect, what is it? I certainly believe that this House is perfectly capable of making these appointments, if they are necessary, without having the additional rigmarole of making them Crown appointments.

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I am grateful to the First Deputy Chairman of Ways and Means for correcting the misprint on the amendment paper, because Amendment 52 deals with line 23, not line 3. Such misprints are rare, and I think that this was another example of the fact that this is rushed legislation. The amendment leaves out part of paragraph 5 that deals with the removal from office of members of IPSA. The Bill says that such a removal may be carried out by Her Majesty the Queen—I think she has quite enough to do without having that duty as well—and that any such removal must be done

I am not sure why both Houses need to be involved, because I understood that this Bill was about this House. Why are we importing into the Bill the requirement that the Leader of the House of Lords should also table a motion in another place to bring about such a removal? Is this because, as I suspect, IPSA is in due course to cover the whole of Parliament, not just this House?

My amendment 52 would alter the procedure within this House and would mean that the motion for an address could not only be moved by the Leader of the House. To put it another way, my amendment would remove the requirement that such an address can be moved only by the Leader of the House and by the Leader of the House of Lords in another place. My amendment seeks to remove that requirement because I am worried that only the Government can do this. I think it is much better to leave the matter open, so that other Members—perhaps the Speaker—can, if the rules allow it, move such an address to make those removals should they be required.

Finally, I come to my amendment 53, which relates to funding.

The Chairman: Order. May I just say to the right hon. Gentleman that his amendment 53 was not selected, so it is not in order to refer to it at this stage?

Mr. Heathcoat-Amory: I shall therefore merely make the point in passing, because it is relevant to the schedule as a whole. I shall ask this in an interrogative way, rather than to make a point, and perhaps the Justice Secretary would refer to it. Why is it that any repayments obtained by this new quango from Members, perhaps in respect of matters paid in error, should not benefit the taxpayer, but instead should be used to fund other activities and functions of the quango? I leave that hanging and I direct the main force of my remarks towards the amendments that you generously selected, Mr. Deputy Speaker.

Sir Patrick Cormack: Mr. Deputy Speaker, I rise briefly to—

The Chairman: Order. May I just make a correction for the Committee’s benefit, because this error is being repeated? We are in Committee of the whole House, so the form of address is either Mr. Chairman or Sir Alan.

Sir Patrick Cormack: I am extremely sorry, Sir Alan, and I hope that you will forgive me. I rise to support the amendment to which my right hon. Friend has just spoken. I do so because he highlighted a very important aspect of this Bill when he talked about the royal appointment, because, as we all know, royal appointments
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are prime ministerial appointments. In making those comments, my right hon. Friend indicated why we are here today. We are here today because of the Prime Minister, who, in a fit of pique and panic, has introduced an extremely bad Bill to Parliament. I have often been criticised, in my constituency and elsewhere, for sometimes working too closely with Members of other parties. I have taken great pride in that and I still do. It is with great reluctance that I have come to the conclusion that the Prime Minister of this country at the moment is not a good public servant of this country—

The Chairman: Order. It troubles me to have to intervene once again on the hon. Gentleman, but having listened to what he has said so far I do not detect how it fits with the narrow amendment we are discussing.

Sir Patrick Cormack: It fits, if I may so suggest, Sir Alan, because the amendment tabled by my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) wishes to delete the reference to royal appointment. I have made the point that a royal appointment is, in effect, a prime ministerial appointment. This very bad Bill has been foisted on us by the Prime Minister in a spirit of vindictiveness, malice and uncharitableness. He is a Prime Minister who wishes to tear down some of the institutions of this country, of which Parliament—

The Chairman: Order. The hon. Gentleman is giving me trouble this afternoon. I reacted instantly to the use of the word “malice” and I think that that is over the borderline of what should really be permissible when ascribed to a right hon. Member.

Sir Patrick Cormack: At your instruction, Sir Alan, I will withdraw “malice” but I shall leave “uncharitableness”. I believe that we are where we are today because of the Prime Minister’s determination to foist on us an instrument that is destructive of this Parliament and its Members’ rights, including yours, Sir Alan.

I shall rest my case there, because I do not wish to make a long speech. I say what I say with a considerable degree of reluctance, but my right hon. Friend the Member for Wells is right to insist that the reference to the royal appointment should be deleted, because for “royal” one has to read “prime ministerial”, and that takes away the power of Parliament to regulate its own affairs and makes us dance to the tune of the chief executive—something that no free Parliament should ever do.

Mr. Edward Garnier (Harborough) (Con): May I ask the Secretary of State one or two questions that arise from the amendment tabled by my hon. Friend the Member for North Essex (Mr. Jenkin)? They relate to the sub-paragraph of the schedule—paragraph 1(2)—that deals with the need to have a member of the judiciary, past or present, on IPSA.

It seems a matter of concern that we should be permitting an arrangement whereby a current member of the senior judiciary becomes involved in what will, in many respects, be an acutely political environment. IPSA, of course, will no doubt do its best to act in a dispassionate and judicial way, but the subject matter of its deliberations must by its very nature be acutely political. Indeed, that subject matter will not just be capital “p” political, but party political. We need to be extremely careful about drawing current members of the judiciary into the arena. Perhaps, on better
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consideration, if we are to have a person of judicial experience on the body, it should be a retired judge and not a sitting judge. However, I do think that some legal experience is sometimes helpful.

I appreciate that not all Members of Parliament always agree, and I also understand that the Lord Chancellor takes a different view from mine on the construction of certain parts of the Bill, particularly in relation to clause 9 and how we define dishonesty. We can perhaps discuss that tomorrow, when I shall do my best to correct him.

Mr. Jenkin: I confess that, perhaps naively, I took sub-paragraph (2) to mean that it was intended that a person who held judicial office at the time of his appointment to IPSA would relinquish that office. If that is not clear, it should be made clear. I hope that that is the Government’s intention and that, if necessary, they will table a Government amendment to clarify matters. In addition, does my hon. and learned Friend agree that a person with experience of high juridical office would be more objective and less likely to be infected by party political matters than, say, a former civil servant?

5.30 pm

Mr. Garnier: That is one of the skills of being a judge. I have no doubt that any current judges who had the misfortune to be appointed to this body would do their best to apply their judicial skills, but that is not the point. Judges must be separated from politics, and seen to be so. We do not have a written constitution in this country, but whether those who prefer a written constitution like it or not, we do have a separation of powers. Importing current judges on to political bodies of this nature would be a mistake.

The other point that flows from the amendment is that there are statutory limits on the numbers of people who may serve as judges in the High Court, the Court of Appeal or the Judicial Committee of the House of Lords. It is not widely known—and even where it is known, it is often ignored—that those people are already fairly fully employed. Taking a serving judge off the current bench of senior judges would simply add delay to the existing criminal and civil jurisdictions, and place additional work on the backs of the current judiciary at a time when they have plenty to do already. There are only two logical conclusions: either that sub-paragraph (2) be deleted, as advocated in amendment 61, or that membership of IPSA should be restricted to retired or former senior judges.

Mr. Dominic Grieve (Beaconsfield) (Con): I want to say a few words about the amendments, and the Opposition’s view of these matters. My hon. Friend the Member for North Essex (Mr. Jenkin) has tabled two amendments that are important in that they give proper consideration to the issue of judicial appointments, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) has explained. There seems to be good reason for having someone of legal experience on IPSA, but I also think that the point made by my hon. and learned Friend is correct. I find it very difficult to imagine how a person in high judicial office, with some time in post still to run, would want to spend his or her later years on the judicial bench—or the years after
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leaving it—as a member or the chairman of IPSA. It strikes me as a job that, although it may have some interest, is unlikely to match the interest generated by working on the bench.

Mr. Paul Goodman (Wycombe) (Con): Does my hon. and learned Friend believe that a judge’s enthusiasm for serving on this body will be enhanced by the possibility, which the Justice Secretary has confirmed, that it may be scrapped at a later date if Sir Christopher Kelly turns out to dislike it?

Mr. Grieve: I agree entirely with my hon. Friend. I would not have thought that the uncertainties about the structure of IPSA would encourage people of sensible disposition who wish to be of public service to apply to join it. I do not wish to stray from the amendment, but we touched on one of the unfortunate aspects of the matter yesterday when we noted the degree of incoherence in how we have proceeded with this legislation. Even the bits that we support—I shall say more about them in a moment—seem to us deficient, as we cannot see the entire structure because we do not have Sir Christopher Kelly’s report.

There are good arguments for saying that IPSA should have a person with legal experience serving on it. If that is to be a retired High Court judge, so be it, but the point has been made that a person who has an active career in the judiciary should not be included in the list, and I rather think that that was not what the Secretary of State intended.

Mr. Jenkin: The main point that I was seeking to make was that if we are to have someone with such experience, he should be on the investigation and prosecuting side, not on the administration and function side. That was the main point of my tabling this pair of amendments. I wonder whether my hon. and learned Friend has a view on that?

Mr. Grieve: There again, having someone of legal experience on the investigatory side may be desirable—clearly not a serving High Court judge or someone who is likely to go back on the bench. There are arguments that someone of legal experience would be valuable. I happen to think that legal experience would be valuable in either role. I shall be interested to hear from the Secretary of State what he has to say on the subject.

There are two slightly different roles. One is clearly investigatory and involves making sure that due process of law is followed, so judicial experience is relevant, especially in view of the comments made by the hon. Member for Hendon (Mr. Dismore) about the human rights compatibility of the new statute. Equally, there may well be some scope for judicial experience within IPSA, if for no other reason than that if one gets the right person it will help inject common sense and may be of assistance in justifying decisions to the public independently of the House. For those reasons, I shall be interested to hear what the Secretary of State has to say.

The second set of amendments has been tabled by my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) on the question of royal appointments. There is something slightly strange here. On the one hand, the Bill makes it clear that the appointment is made by this House voting on a motion, but is ratified by the Queen. On the other, later in the Bill, the person who is appointed
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is described as not being a Crown servant. I find a slight incompatibility between an appointment that derives from the monarch and the appointee not being a Crown servant. I shall be interested to hear from the Secretary of State exactly what the legal status of that person will be.

Mr. Edward Leigh (Gainsborough) (Con): Is it not a fundamental point of parliamentary privilege established since the civil war that no Crown servant should have any jurisdiction over this House?

Mr. Grieve: My hon. Friend makes an important point. The difficulty that the House has, and we have to face up to it, is that either IPSA is our creature in the sense that it is ultimately answerable to us, or it is not. As I said on Second Reading, I have grave anxieties about the widening of the scope of IPSA’s operation, especially to issues of MPs’ conduct. That is in a sense a separate issue that we will have to consider tomorrow, although it will colour my view about the entirety of the legislation.

If the purpose of establishing IPSA is to set up a system for setting our salaries and allowances and ensuring that they are properly paid and that we repay what might have been misclaimed, the arguments for creating a body that is seen to be entirely independent of the House become strong. I have to say that we have got ourselves into our difficulties in part because we have in-house allocation of our allowances and we ultimately control them.

I am sympathetic to the Government’s aim, as I made clear at the outset, of having our salaries and allowances set outside this place entirely. If we are to achieve that, it must follow that IPSA cannot be seen to be our creature. If it is appointed on the basis of motions in the House, it will remain so. That is the point where I have sympathy with the Government’s position. That sympathy begins to erode when I see how the Government have provided for IPSA to have other functions and, above all, for the commissioner to have other functions which I believe intrude into areas of conduct, affect the Bill of Rights and our privileges, and are much more controversial.

The question that I would like the Secretary of State to answer is: in view of what the Bill says—namely, that the appointment is made by motion of this House but is ratified by the Crown—what is the status of the person who is thus appointed if they are not a Crown servant? On the face of it, it seems rather an anomalous position.

Mr. Straw: This has been a useful debate, and I am grateful to right hon. and hon. Gentlemen for having raised issues. Let me deal with them in turn. The hon. Member for North Essex (Mr. Jenkin) asked, first, whether it was appropriate for there to be a place on the authority for somebody who has held high judicial office; secondly, whether it is acceptable, in any circumstances, to hold out the possibility of that person being a current holder of high judicial office; and, thirdly, whether it would be more appropriate for somebody in that position to be the person selected to be commissioner.

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