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On whether it would be very useful for there to be one person on the authority who has high judicial experience, certainly there was not much argument in the inter-party talks, although I accept that they were not a substitute
for debate in this House; of course they were not. My view is that given the nature of the functions of the authority, somebody with high judicial experience could be extremely helpful in helping to guide the authority. There is no direct parallel, but I have certainly witnessed at close hand the work that former members of the Court of Appeal have done as commissioners for the interception of communications, for surveillance and for the intelligence services. They do a job that is partly administrative and partly adjudicatory, and they do it with huge skill, perspicacity and authority. We are trying to set up an authoritative body that is at arm’s length from the House, and that does not leave us open to the criticism that we are judging ourselves, so having someone with that authority on the body would be very helpful.
I say to the hon. Member for North Essex that the authority will have two functions, which are set out in one of the clauses. One of the functions is to run the administrative system—that is, to administer the allowances and so on. The execution of that system will be a matter for the chief executive. Alongside that, but quite separately, there is the function of adjudicating on complaints that are brought to the body by the commissioner. In certain circumstances, the body will deal with the complaints; in other circumstances—if it judges the complaints to be more serious—it will refer them to this House. Again, when it comes to ensuring that there is an acceptable process that meets the requirements of natural justice and of article 6 of the European convention on human rights, it would be helpful to have somebody on IPSA with the authority of high judicial experience.
On the hon. Gentleman’s second point, he is quite right to suggest that it is improbable, not to say impossible, that somebody who is currently serving as a senior judge could or should accept appointment to IPSA. The only circumstances that I can conceive in which the current wording would be relevant are those in which someone who is coming to the end of their term of office, and is about to retire, wishes to apply for the IPSA job. He or she might be appointed to it while still holding high judicial office, but would not take the job on until they had finished their term of office. However, if I may, I will take away the issue of the current drafting and think about it.
On the third point, which was about whether it would be more appropriate for the commissioner to be somebody who had held high judicial office, there is nothing to stop somebody who has judicial experience from applying for the post. It is important that a member of the authority should have held high judicial office, but I can think of others who have had good judicial experience who could easily fulfil the work of the commissioner.
Mr. Jenkin: There has been a succession of very able Parliamentary Commissioners for Standards, but no holder of that office has had juridical experience, and that is a disadvantage. Surely the Bill is an opportunity to make sure that an improvement is made in the new arrangements.
Mr. Straw:
I am a member of the legal profession and have great affection for it. I have made plenty of jokes along the lines that only a lawyer should apply for any job I can think of. I know there is approbation for that
on at least part of the Opposition Front Bench. However, just as we have fine qualities, there are others with equally good qualities.
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Mr. Garnier: Could the Government think a little more carefully about another problem? They are in danger of leading themselves into yet further difficulties. The Secretary of State has now accepted that it would be unwise for a serving member of the judiciary to fulfil the function, but the Government’s policy seems to be continually to reduce the retiring age of judges, presumably on the basis that above that age they are unfit, through senility or exhaustion, to serve as judges. If they are required to retire at increasingly early ages as judges, why are they then fit to perform the proposed function?
Mr. Straw: The basic reduction in the age of retirement for the judiciary was made by the right hon. and noble Lord Mackay in 1995. It was his proposal to reduce the retirement age from 75 to 70. I have no proposals to reduce it still further, and I would be reluctant to do so. As the hon. and learned Gentleman knows, many members of the senior and less senior judiciary are very capable of carrying out further functions after they have retired.
Let me deal with the points made by the right hon. Member for Wells (Mr. Heathcoat-Amory). I do not accept—and there is no provenance for this—that if an appointment is made by the Speaker, by virtue of that fact it is a creature of the Executive. Many, many appointments are made which have nothing whatever to do with the Executive. My right hon. Friend the Member for Birkenhead (Mr. Field), who is not in his place, said to me that he had been appointed by Her Majesty to two positions, neither of which have anything to do with the Executive.
We considered whether, as is standard in respect of the Comptroller and Auditor General, for example, there was something to be said for the appointment to be formally recommended by the Prime Minister, but we ruled that out rather quickly so that the recommendation should go direct from the Speaker. As was made clear by the ceremony last Monday, in which I took part, the Speaker, who is elected to serve the House, has to have his or her appointment approved by Her Majesty, but that never goes near the Executive, nor should it. I hope I can provide reassurance on that.
The purpose of ensuring that if there is discontent with the individual or individuals, they can be removed only on an address of both Houses, is to bring that into line with the arrangements for the removal of members of the High Court and above, to give them assurance that they are independent. That makes sense, but I accept the right hon. Gentleman’s objections to only the Leader of the House or the Leader of the other place being able to put that motion before the House. I acknowledge that that provision should not be in the Bill, so I will seek the approval of the House for amendment 52.
Mr. Jenkin: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 52, in schedule 1, page 11, line 23, leave out sub-paragraph (5).— (Mr. Heathcoat-Amory.)
Sir George Young (North-West Hampshire) (Con): I beg to move amendment 3, page 15, line 41, leave out from ‘After’ to end of line and insert
‘the Committee has reviewed the estimate and made any modifications, the Speaker’.The Chairman: With this it will be convenient to discuss the following:
Amendment 4, page 16, line 28, after ‘and’, insert ‘the Speaker must’.
Amendment 5, page 16, line 30, leave out ‘On laying’ and insert ‘When the Speaker lays’.
Amendment 1, in clause 3, page 2, line 18, leave out ‘IPSA’ and insert ‘Speaker’.
Amendment 2, in clause 5, page 3, line 25, leave out ‘IPSA’ and insert ‘Speaker’.
Sir George Young: These are technical amendments, and the need for them may reflect the haste with which the Bill has been drafted. Paragraph 25 of schedule 1 provides for IPSA to lay its annual report before Parliament. Papers may be laid on the Table only by a Member or an Officer of the House, so in practice someone will have to lay the annual report and other papers on behalf of IPSA. Of course, IPSA is independent of the Government, so it would not be right for the papers to be laid by a Minister of the Crown. The Government may assume that the Clerk of the House will lay them, but the legislation should not rest on assumptions, and, to the extent that there are precedents for this, they are not very good. It will be for the House authorities to decide whether any Act, drafted in the current terms of the Bill, provides sufficient clarity and authority for papers to be laid on behalf of IPSA.
It would be much better to specify the laying authority in the Bill, and the Speaker, as Chairman of the Committee established by virtue of clause 1, is the appropriate person to lay the papers both on behalf of that Committee and, indeed, of IPSA. He already lays papers on behalf of similar independent bodies, such as the Electoral Commission. If the Government do not agree, they should at least make it clear in the Bill who will lay those papers.
Sir Stuart Bell (Middlesbrough) (Lab): I am very grateful for the opportunity to make a contribution with you in the Chair, Sir Alan; it is a very rare opportunity for us all. I simply second the comments of the right hon. Member for North-West Hampshire (Sir George Young). His amendment would place the focus back on the Speaker, and, as we have just chosen a new Speaker, it is appropriate that he have that role. I seek to be persuasive, and I invite the Secretary of State to agree to the amendment.
Mr. Straw: Such is the eloquence of the right hon. Member for North-West Hampshire (Sir George Young) and my hon. Friend the Member for Middlesbrough (Sir Stuart Bell) that I am very happy to accept the amendment. It makes eminent sense and shows the value of this kind of process.
Amendments made: 4, in schedule 1, page 16, line 28, after ‘and’, insert ‘the Speaker must’.
Amendment 5, page 16, line 30, leave out ‘On laying’ and insert ‘When the Speaker lays’.— (Sir George Young.)
Schedule 1, as amended, agreed to.
Mr. Jenkin: On a point of order, Sir Alan. What happens to amendments 1 and 2?
The Chairman: They come later. The hon. Gentleman should not be concerned; we shall arrive at them in due course.
Question proposed, That the schedule be the Second schedule to the Bill.
Sir George Young: Schedule 2 creates a new Commissioner for Parliamentary Investigations, but it leaves in place the existing Parliamentary Commissioner for Standards. After the legislation comes into force, the Parliamentary Commissioner for Standards will, for an as yet unspecified period, retain responsibility for the register of Members’ staff, the register of journalists and the register of all-party groups; for advising the House on its code of conduct; and for considering complaints that a Member has breached the code, unless the complaint relates wholly to the Members’ allowances scheme or to the rules on Members’ financial interests.
Of course, complaints do not always fit neatly into one category or another, however; it is perfectly possible for a complaint against a Member to fall into two. The advantage to the public and to the House of the current arrangements is that we have a one-stop shop for complaints about Members: the Parliamentary Commissioner for Standards. Under the Bill, however, we will close that one-stop shop. Not only will some complaints be potentially open to investigation by both commissioners, but the conduct of the two investigations into the same complaint may be carried out according to different procedures, and the resolution of the two complaints may be made according to different criteria.
Last night, the Deputy Leader of the House told the House in her winding-up speech:
“Any future change to the role of the Parliamentary Commissioner for Standards would be made only with the agreement of the Speaker and after an affirmative vote by the House, following consultation with both the Independent Parliamentary Standards Authority and the Committee”—
my Committee, the Standards and Privileges Committee—
“that the right hon. Gentleman chairs.”—[ Official Report, 29 June 2009; Vol. 495, c. 126-27.]
In view of the potential for confusion, I wonder whether I can press the Minister to say a bit more today about how she sees the relationship between those two commissioners prior to such changes that may bring to an end the existence of one. How exactly will we avoid all the dangers of duplication, overlap and inconsistency of approach which are inherent in two commissioners being in office at the same time?
Mr. Grieve:
I endorse everything that my right hon. Friend has just said. There will inevitably be duplication in the transition period, but then the question is, what happens beyond any transitional period? Either we get rid of the Parliamentary Commissioner for Standards, whom we have in this House, in which case the Commissioner for Parliamentary Investigations must inevitably acquire the powers of regulation over those matters that are solely within the House’s remit; or we recognise the basic problem that the Government created a Bill that was initially designed to regulate our conduct in its entirety, they backed off after the overwhelming
outcry about the House’s independence being completely lost in the process, and they have been unable to follow the matter through to its logical conclusion, which is that the role of the Commissioner for Parliamentary Investigations is redundant. We should look for a proper system whereby IPSA, if it considers rules on claiming allowances and salaries to have been transgressed—although that is rather unlikely in the case of parliamentary salaries—makes any reference that it needs to make to the existing structure.
That is the problem, and my right hon. Friend is absolutely right to highlight the fact that the issue appears to be a fertile area for conflict. Conflict will occur not just when we decide on the current structures today; we are laying the ground for future conflict when the House considers whatever the final structures should be.
Mr. Garnier: Taking into account what our right hon. Friend the Member for North-West Hampshire (Sir George Young) said about the potential for conflict over the interpretation of the law and the facts, might not one pragmatic solution be to have one person doing both jobs? It is a bodge, but this Bill is a bodge.
Mr. Grieve: My hon. and learned Friend makes an interesting and sensible point. The only difficulty is that we have just debated the fact that the chain of answerability of the Commissioner for Parliamentary Investigations and the Parliamentary Commissioner for Standards is different: one derives directly from the House; the other quite deliberately—certainly in terms of IPSA—goes somewhere else.
The measure has not been properly thought through, and there is a real constitutional incoherence about the way the Government have dealt with the issue. The problem will not go away just because we decide to ignore it.
Mr. Leigh: Is not the overwhelming and logical conclusion to the argument of my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) that IPSA should be no more and no less than an independent fees office?
Mr. Grieve: My hon. Friend refers to the body that many thought was going to be created. There are very good arguments for having a wholly independent body administering our salaries and allowances. That would free Members of Parliament from a burden which, frankly, we were showing ourselves very ill used to discharging, and which meant that we were coming in for a great deal of public criticism; in many cases, MPs did not want to go through the business of doing it because it attracted public opprobrium whatever decisions they came to.
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Those are really good and compelling arguments. The Government have muddied the waters. When the Prime Minister made his pronouncements on television, which did not appear to relate to having taken any prior advice, he indicated that this structure would have supervision of our conduct without thinking through the constitutional implications. Although he has since rowed back—under a great deal of pressure, I suspect, from several quarters—there has been an unwillingness to follow that through to its logical conclusion. I urge the Secretary of State—who is, after all, responsible for the rule of law in this country, for trying to maintain some clarity, and for protecting our constitution—not
to create what appears to be a dog’s breakfast. I will be interested to hear how he thinks these two things can, in practice, be reconciled when it is abundantly clear that if we breach the rules on parliamentary allowances, we bring ourselves directly in line for criticism in terms of our status as Members of this House. Having some clarity would help everybody.
Mr. Straw: The right hon. Member for North-West Hampshire (Sir George Young) has raised an important issue that we discussed to some degree in the cross-party talks. It may be helpful if I tell the Committee what is in the Government’s mind. I resist the claim by the hon. and learned Member for Beaconsfield (Mr. Grieve) that we have been unwilling to follow through the consequences of our proposals to their logical conclusion. We are not discussing clause 11 at the moment, but that clause—Opposition Members will recall its provenance—was put into the Bill to try to deal with precisely this issue.
First, let me deal with the point made by the hon. Member for Gainsborough (Mr. Leigh), who asked whether this body should have been an independent fees office, in his phrase, and nothing more. We are indeed establishing an independent fees office, but there are certain consequences that follow from that. One of the key consequences involves who then supervises that independent fees office. If we approve the principle of an independent fees office, as the House plainly has—I remind Members that the principle of the Bill was approved by a majority of 290; the vote was 291 to one—we must also approve the principle that the people who supervise it must be independent of this House. Otherwise, we would get into the absurd position of having a fees office that was allegedly independent, but when there was a complaint about its operation— whether it came from a member of the public, a Member of this House or a member of staff, and whether it concerned its administration or how it was adjudicating on individual Members’ allowances and claims—that complaint would fall to be adjudicated solely by this House. If there were then a question about whether the new independent fees office was being properly run, again it would fall to the House to deal with it. We would not be setting up what we sought to set up at all, but a charade.
That is why we thought that we should set up the structure that is essentially provided for in schedules 1 and 2. The authority has two branches to its work, one of which is administrative. There is a chief executive, or chief officer, appointed by the authority, but it is the chief officer, not the authority, who is the accounting officer, and he or she is directly responsible for the administration and good financial conduct of the authority and its expenditure of money. On the other side, there is a commissioner who is there to investigate complaints, which may well be about the operation of the chief executive and his or her staff. I suggest to the Committee that that is an essential part of any process to establish what the hon. Member for Gainsborough describes as an independent fees office. There is an argument for saying that the commissioner should be wholly hived off, but the commissioner is pretty nearly wholly hived off.
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