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30 Jun 2009 : Column 245

Mr. Field: We were lucky—we were both rejected.

Mr. Straw: We were indeed, and never was there salvation more quickly delivered. It struck me then that my right hon. Friend was possessed of many great talents but had a wish to end up on the stake or subject to some other form of martyrdom. Attractive though I know the stake or the gallows are to him, the prospect of his proceeding in that way and being fined by the new body is out of the question.

Several hon. Members rose

Mr. Straw: And on that point, four hon. Members stand up. I give way to the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd).

Mr. Llwyd: May I take the right hon. Gentleman back to the incisive question asked by the right hon. Member for North-West Hampshire (Sir George Young)? He dissected the current code of conduct and said that at some point the non-financial aspects of it would probably be hived off to the new body. Some of us were quite happy to hear that clause 6 would disappear from the Bill, but it is actually a great concern because that clause stated that the code of conduct would continue as per the Nolan principles. The deletion of clause 6 will in fact make it easier for all conduct issues to be taken into the new body.

Mr. Straw: I assure the hon. Gentleman that there is no question of responsibility for non-financial conduct matters going to the new authority. That will not be part of its functions. We discussed the matter at some length downstairs in the cross-party talks. It would be outwith its functions and experience, and it would be completely inappropriate for wider issues of conduct to be subject to scrutiny or determination other than by the House. The Government oppose that; I oppose it; it is not in the Bill and we are proceeding on that basis.

Mr. Grieve: I have a growing anxiety as I listen to the Secretary of State and watch his body language as he explains the provisions. Changing “rules” to “code” emphasises that the measures we passed a few weeks ago and that several hon. Members regard as completely flawed—I shall explain the reasons for that when I speak to my amendments—will, the moment the Bill is on the statute book, be subject to all the pains and penalties, including criminal offences in so far as they refer to financial matters, in clause 9. Should we not concentrate on that? On the one hand, the Government tell us that they have abandoned the conduct provisions in clause 6—to which we all say, “Hooray”—but on the other, and with some slight sideways movement, the Secretary of State attempts to lull us into accepting an unsatisfactory state of affairs, with potentially catastrophic consequences for individual Members.

Mr. Straw: I do not accept that. We can have a debate about whether we use “code relating to financial interests” or “rules”. It amounts to the same thing. What is in the tin is the same.

Mr. Redwood: Is the Secretary of State saying that introducing a new set of financial rules tomorrow could be followed by their substantial amendment when Kelly reports, and that that could be followed by further substantial amendment when the new authority is set
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up and opines that it has got it all wrong? Is that not simply too difficult and complicated for people who try to follow what we do?

Mr. Straw: I am genuinely unaware of whether Sir Christopher Kelly is concerning himself with rules or codes about declarations of interest. I do not think that he is. He may be, but—

Mr. Gerald Howarth: The Prime Minister said so.

8.45 pm

Mr. Straw: I have not said so. I am open to correction—I have not given evidence to Sir Christopher Kelly’s committee, but he appears to be concentrating on the whole system of allowances and expenses. If he were to say that there should be some change in categories of registration and declaration, the House would have to take that on board, but it is not relevant to the Bill.

I say to the right hon. Member for Wokingham (Mr. Redwood) that, in due course—it will be quite some time—the authority may decide to propose different sets of rules in its code for registration and declaration. It may propose some that would give my right hon. Friend the Member for Birkenhead (Mr. Field) greater comfort than paragraph 24 of the Green Book about declarations of hours. However, that is further down the track. I offer the right hon. Member for Wokingham the comfort that, if the authority made such a proposition, it could come into force only if and when it was approved by affirmative resolution.

Mr. Paul Goodman (Wycombe) (Con): I want to try a question on the Secretary of State that has nothing to do with Kelly or with the words “code” or “rules”, but is pertinent to what he says. As he knows and as colleagues have said, the new rules that require Members to declare how many hours they work outside this place come into effect tomorrow. According to clause 5, a series of rules will be established. Subsection (6) provides that they will not come into effect until they are approved by a resolution of the House. If the clause goes on to the statute book, is it the case that from that point the rules that come into effect tomorrow will be null and void until the House passes a resolution on the new rules? The Deputy Leader of the House is shaking her head.

Mr. Straw: No, it is not. The rules will come into force and, despite what the hon. and learned Member for Beaconsfield has said—that at the moment a breach of the code would not give rise to a criminal offence—it is certainly the case that, because a failure to comply with the requirement in the financial interest rules code will give rise to an offence under clauses 9(2) and (3), that requirement will have to be very carefully drafted. Indeed, it will have to be more carefully drafted than what is currently in the code.

This is not supposed to be a debate about paragraph 24 of the current code of conduct, but I just want to make one point. There are 168 hours in a week—that is not a matter for argument across the Chamber; it is just true. I merely offer hon. Members who are worried and their constituents this reflection. The European working time directive, whether one likes it or not—some do, some do not—prescribes 48 hours as the standard maximum that one is supposed to work in one job. [ Laughter. ] Hang on. If colleagues are sleeping normally—eight hours a day—that will them give them 56 hours. Adding
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those two together gives 104 hours. If we take that away from 168 hours we get 64 hours, which gives hon. Members nine hours a day, more or less, to do what they want with and still fulfil their constituency duties. [ Interruption. ] I am merely trying to be helpful.

Mr. Charles Walker (Broxbourne) (Con): I agree with my right hon. Friend the Member for North-West Hampshire (Sir George Young). I entered the House of Commons four years ago, and it is a complete madhouse. We are now on our fourth iteration of the Green Book since I got here. The rules have changed on a quarterly basis, and now they are changing on an almost fortnightly basis. We have codes there, codes there—codes everywhere. We are seeing almost a deliberate attempt to criminalise every Member of Parliament, because it is now impossible to keep up with what the Government are doing.

Mr. Straw: I apologise, but I cannot quite remember when the hon. Gentleman came into the House.

Mr. Walker: Four years ago.

Mr. Straw: The House has been struggling to bring its systems up to date and into a state such as it has insisted that other institutions and professions bring theirs into, which is one of the reasons, I suggest, why we fell into the abyss of the expenses scandal. With a bit of luck, once we get the legislation through and we get the authority established, we will be able to enter a period of much greater stability. That is my hope, and I think that we will do that.

Mr. Jenkin: I apologise to the right hon. Gentleman for missing the opening few minutes of his remarks, although I was pleased to hear his important comment about clause 5(8), which he will now take away and redraft. However, could he tell us how that will be done practically? Will he table an amendment tonight that will be dealt with on Report tomorrow or do we have to leave that to the House of Lords? We are scrutinising the Bill in very limited time, so it would seem to be awfully late in the day to bring forward such amendments, welcome though they would be.

Mr. Straw: With the best will in the world, I do not think there will be time to table such an amendment to take on Report tomorrow. However, we are a bicameral legislature, and there is no reason on earth why we cannot have commitments made in one Chamber and amendments moved in the other—indeed, it happens all the time. However, what I also undertake to do—I should have said this—is to consult—

Mr. Jenkin: Me?

Mr. Straw: I will indeed consult the hon. Gentleman—why not? I cannot promise that we will reach agreement on the draft amendment, but I promise that I will consult him, and I will consult all the others on the cross-party group, too.

I think that I have spoken for long enough. This has been an unexpectedly entertaining few minutes—for me, anyway—and I shall now listen to the debate.

Mr. Grieve: I was not sure whether to feel sorry for the Secretary of State, but I will do so, because he seems to have been placed in an impossible and ludicrous position—largely, I suspect, by the actions of the Prime
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Minister. I say to everyone here that they would do well to be very careful before accepting the siren songs that are being sung to them. What we have here is an illustration of the utter incoherence at the Bill’s very core, which could have devastating consequences for every Member of this House.

First, the Secretary of State tells us that he wishes us to change the wording, so that the word “rules” is replaced by the word “code” throughout the Bill. We have a code of conduct at the moment. The proposed change could be entirely cosmetic and pointless—an attempt to change the words possibly because the Prime Minister promised that there would be a code, and the code in clause 6 has now gone because those provisions have been removed. That is one possibility.

The second possibility, which we need to bear closely in mind, is that putting the word “code” into the Bill will have the effect of bringing justiciability on the entirety of the existing code of conduct for hon. Members, and in future there will be two codes, but they will be conflated into one. We would do well to avoid that option. If we do not, justiciability and judicial scrutiny will apply to the financial code and to our own code. Furthermore, I am left with the unpleasant sensation that the proposal to change the wording might involve an attempt to obfuscate future change, so that, when we subsequently consider these matters, it might be easier for the House to swallow the bitter pill.

Sir Robert Smith: Will the hon. and learned Gentleman expand on his logic? The House already has a code, and another code is proposed in clause 5. Why would the proposal mean a reverse in justiciability in relation to our own code? Would not the courts understand that justiciability would apply to the rules or code in clause 5?

Mr. Grieve: I take the hon. Gentleman’s point.

On balance, I prefer my first theory to my second. Nevertheless, I cannot exclude the second. Having spoken to others who might know more about this than I do, and who seem to be more knowledgeable about the House’s procedures and rules, I believe that we would be very unwise to take this step. As I have said, the change of wording is either pointless—in which case, if we want to change it, we can do so when we create the new body with a single code and possibly a single commissioner doing slightly different things—or we should leave the proposal well alone.

Mr. Straw: Picking up on the point that was made a moment ago by the hon. Member for West Aberdeenshire and Kincardine (Sir Robert Smith), the hon. and learned Gentleman is making much of the question of potential justiciability, but there is no basis or warrant for that claim on the basis of a change of name. Does he accept, however, that there is a fundamental distinction to be made between clause 6 and clause 5? There was anxiety—however loosely founded it may have been, I accept that it had a basis in fact—that, because the duty in clause 6 was placed on the House, the House could have been the subject of judicial review. That would have run straight into issues of privilege, which is why I was happy to withdraw that clause. The duties under clause 5, however, are on a statutory authority, and it is completely standard for duties on such an authority to be subject to scrutiny by the courts.

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Mr. Grieve: I listened with care to what the Secretary of State has said, and I am conscious of the very limited time we have had to consider the matter—and the even more limited time to consider the further changes that he puts forward. He will have to answer when, ultimately, we come to point where we will have to approve the rules or the code, and it seems to me that at that stage, the matter is as much a creature of this House as it is if we have a code of conduct under clause 6—even if it has a statutory nature. All I can say is that my best advice to the Committee is that I can think of no reason why, if the Secretary of State is right, we should not keep clear the distinction between the financial rules that he wishes to create and the present code. If there is even a shadow of a doubt, the sensible thing for the Secretary of State to do is to abandon this attempt to change the word “rule” to “code” and to leave it as it is now, and we can sort it out later. I very strongly urge him to do that.

Secondly, moving on to our own amendment, I note that I thought I had understood, but perhaps I had misunderstood, that the Secretary of State was going to abandon clause 5(8). I thought it was an abandonment rather than a going away to rewrite the provision in some new form. There is absolutely no doubt that once clause 5(8) comes into force, it will, as I said in my intervention earlier, have an immediate bearing on a whole series of questions relating to the rule changes we introduced two months ago or whenever it was, which have come in for so much criticism in the House.

By way of illustration, let me turn to amendment 28. I am also mindful of what was said by the right hon. Member for Birkenhead (Mr. Field) a short time ago. I must declare my interest here, Mr. Cook, as a practising member of the Bar. However, that fact may be pretty academic because as I have not practised for 12 months, it is unlikely that I will practise again before the next general election—and it may well be that my appearance in court last July was the last time I will ever appear.

Mr. Jenkin: Not under this Bill.

Mr. Grieve: My hon. Friend could not be more correct. There is, I think, little danger of my appearing as an advocate, but if I tried to appear as one, there would certainly be a very immediate danger of my appearing as a defendant. Let me explain to the Secretary of State just how flawed is the system that he proposes to introduce.

9 pm

We were told that the whole issue of professional confidentiality would be dealt with under the regulations. We were to say not only how much we earned and when we earned it, but normally to provide a statement of who paid us. It was also said, however, that special provision would be made to respect client confidentiality in respect of the professions. Unfortunately, in their practical application, these rules will not do that.

The requirement for me as a barrister is to say that I received £X from a solicitor for advising a client and a court appearance and that I carried out Y number of hours’ work. The problem is that I did only one case in July last year. It was quite widely reported and it concerned the definition of the word “garden” in the Forestry Act 1967—a very interesting and rather esoteric
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matter. The fact is that I did only that one case. If I were to report that I had received £X from the solicitor who instructed me in that case for Y hours, there would be no difficulty in establishing how much the client had paid me.

For those reasons, if this case were taking place in three days’ time rather than a year ago—on 3 July last year, I believe—I would be unable to comply with the rules. Whatever law may be passed in this country, I am afraid that my professional rules would have to take precedence as a matter of conscience and I would simply not be able to observe the terms of this declaration that the House required. At the moment, that would land me in serious difficulty with the House. That would be bad enough, and it might bring my career to an end, although I would have to accept that cheerfully because I would not be prepared to subvert my professional requirements of confidence to clients. However, the Bill would also turn that into a criminal offence. I urge the Committee, when we consider criminal offences tomorrow, to take a little time to consider the extraordinary architecture of oppression that we would be creating for ourselves. I do accept that we appear to have created an architecture of oppression for many other people in recent years—

Mr. Llwyd: If I understand the rules correctly, from tomorrow every gross payment we receive will have to be recorded. The hon. and learned Gentleman knows as well as I do that gross payments do not relate to the net receipts at the end of the financial year. What is one to do—record the gross or estimate the net? It is grossly—perhaps I should rephrase that—terribly unfair.

Mr. Grieve: The hon. Gentleman is right. The rules say something about that, but it is all very vague and opaque. Amendments 29 and 30 would be preserved under the current structure.

Sir Robert Smith: Under the hon. and learned Gentleman’s professional code, what information could he provide to give the public an indication of any obligations he might have through his financial interests?

Mr. Grieve: I have given the game away by saying that I only worked once last year, but normally I would have no difficulty in giving a global figure for how much I earned. I could also give the number of hours worked, although heaven knows it is not as though I keep a 100 per cent. accurate record. For many cases, I am not paid by the hour, and it will require some onerous changes to the way in which I operate to introduce an egg-timer to record every moment I am earning. However, if that is what the House requires, I will of course comply, but I will not identify my clients and how much they have paid me. That applies not only to me—it will apply to any professional in a recognised profession with a duty of confidentiality. For that matter, it may well extend outside.

The difficulty arises because we do not work full time. I am sure that the intention behind the drafting of the regulations was that nobody should be able to disentangle what money came from whom. However, for most hon. Members, the likelihood is that the amount of work that they do is so limited that it would be exposed by the new system. We have landed ourselves with a monumental problem for a benefit that I fail to understand.

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