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Sir George Young:
As drafted, clause 7 does not provide an opportunity for Members to refer their own cases to the new Commissioner for Parliamentary
Investigations. The Bill thus removes a facility that is currently available to Members and which has been used on several occasions in the past couple of years. Amendment 9 would restore that facility.
I think it is right that there should be no automatic entitlement for Members to refer their own cases. Currently, the commissioner seeks the agreement of my Select Committee on Standards and Privileges before he proceeds with an investigation into a matter that has been self-referred. In my view, it would be appropriate for the procedures that will be drawn up under this clause to prescribe a similar process whereby a self-referral leads to an investigation only if IPSA gives its assent. For example, there may be allegations made about a Member which receive widespread publicity but nobody actually makes a complaint. The only way in which that Member can have his name cleared is to refer himself, currently to the Parliamentary Commissioner for Standards, go round the course and then, hopefully, be cleared. Amendment 9 would replicate that facility in the proposed new regime.
Amendment 10 deals with a different point, but it is similar in that the purpose is again to restore a feature of the current system that will otherwise be lost, and which in the opinion of my Committee has worked well. I am referring to the rectification procedure. The amendment allows the new commissioner to rectify certain cases without making a formal report to IPSA. It closely replicates the language of Standing Order No. 150. Typically, cases suited to rectification involve the misuse of a few prepaid envelopes, or an inadvertent and relatively minor error in the content of a letter sent out using the communications allowance. Where the Member accepts that such a relatively minor error has been made and makes the appropriate restitution, the matter can be regarded as dealt with. I fear that if no provision of this kind is made, IPSA will find that it is kept very busy considering reports on relatively minor and inconsequential breaches of the rules.
After conducting an investigation, the Commissioner must make a report to the IPSA on the Commissioners findings.
If the reports are to be substantive they will, again, involve a lot of work about very little. It would be helpful if the Secretary of State could say something about how that unqualified requirement to report might work in practice.
Finally in this group, amendment 11 would require IPSA to consult before it determined a set of procedures applying to the treatment of complaints, the conduct of investigations by the new commissioner and the publication of the commissioners reports. The procedures will be of considerable importance to the House, and I am surprised that no provision for consultation was included in the Bill, especially as it very commendably includes consultation provisions in clauses 3, 5 and 11a fact that should make it easy for the Government to accept this amendment.
I would have preferred the new commissioner rather than IPSA to be in the driving seat when it comes to drawing up the investigation procedures, and my failure to table an amendment to that effect is but one more symptom of the haste with which this Bill is being put through. I have, however, tabled such an amendment for Report, and it would be helpful if the Secretary of State could comment now on whether he will accept it.
A further question arises on this clause: its relationship with clause 9. Given that all the alleged breaches of the rules that the commissioner may investigate under clause 7 will also be offences under subsections (1) or (2) of clause 9, do the Government expect the commissioner to be at all busy, because these will now be criminal offencesand is it not the case that all serious breaches will be handled by the police, leaving only relatively minor cases such as the misuse of prepaid envelopes and the inadvertent inclusion of a party logo in a letter funded by the communications allowance to be investigated by the commissioner? Therefore, what exactly will the work load be?
Amendments 48 and 45 stand in the name of the hon. Member for Hendon (Mr. Dismore) and my hon. Friend the Member for North Essex (Mr. Jenkin) respectively, so I shall not comment on them. However, having successfully had a number of amendments adopted by the Government yesterday, I regard myself as being on something of a roll, and I hope that my good fortune may carry on to today.
Mr. Bernard Jenkin (North Essex) (Con): I will not detain the House for long, and I apologise for not having been present at the beginning of our proceedingsalthough not so that I could have moved the amendment in my name in the previous group; I had no intention of wasting the Houses time on that, given the Secretary of States statement that he was withdrawing the clause concerned.
My amendment in this group echoes the concern of my right hon. Friend the Member for North-West Hampshire (Sir George Young) that Members subject to the procedures of IPSA and the commissioner should be properly informed of what is going on and have proper advice.
My particular concern relates to a personal experience, which I discussed in abstract terms with the Parliamentary Commissioner for Standards, so as to avoid lobbying him about a complaint that might arrive in his in-tray. I had found that I had inadvertently breached the rules, so I went to him to present him with a letter, which was, in effect, a self-referral. He said that he was minded not to accept it, but when I asked him what action he would take, he said that he would wait for a complaint. I then asked him what he would advise me to do, to which he said that he could not advise me, because he might receive a complaint and have to adjudicate on the case. I asked him which servant of the House of Commons could advise me on the matter, but he told me that nobody could. I then asked whether I should seek legal advicethat seems to relate to the import of my right hon. Friends amendmentbut he said that his body discourages from people taking legal advice because it makes its proceedings so much more protracted.
I have great sympathy with that view, and now that, between IPSA and the commissioner, we are having a separation between the management of rules, and the investigation of and adjudication on breaches, it should be simple for IPSA and/or the commissionerhere I link my amendment 45 with my amendment 46, which seeks to amend clause 8to ensure that a servant of IPSA or a Clerk in the service of the House, which means someone who does not cost the Member money and does not cost the House of Commons additional money, is made available to the Member who is subject
to an investigation or to a direction by the commissioner under clause 8. There should be an informal way of ensuring that right hon. and hon. Members have access to independent advice without having to resort to expensive lawyers.
That would be simple to arrange, and my two amendments seek to put those obligations on IPSA and the commissioner to ensure that that advice is afforded to Members without additional and unnecessary expense. That would avoid the situation wherein hon. Members are left completely isolated in a system that they are fighting. The accusations may be unjust or arise out of a misunderstanding, but we still ought to have a means of providing, in a fairly relaxed way, relatively informal advice. Obviously it remains open to a Member of Parliament to obtain formal legal advice if he or she so chooses, but I hope that my proposal would save right hon. and hon. Members a great deal of anxiety, while also giving comfort to IPSA and the commissioner that the Member was capable of dealing with the matter in an informed and practical way, and was not being left on his own or facing huge legal expenses.
Mr. Andrew Dismore (Hendon) (Lab): I shall speak to amendment 48 and new clauses 5 and 11, which I have tabled to give effect to recommendations made in the report of the Joint Committee on Human Rights. The Committees concern was about the need to ensure that Members receive a fair hearing throughout this process. It is often said that human rights are all about unpopular causes and, as I said on Second Reading, there cannot be many more unpopular causes around at the moment than us. However, our unpopularity does not detract from the fact that even MPs are entitled to due process.
The significant human rights issue raised by the Bill is whether it provides sufficient safeguardsI do not think that it doesto be compatible with Members right to due process under both common law and article 6 of the European convention on human rights. The Government accept, in their explanatory notes, that the provisions in the Bill relating to the functions of IPSA may engage the right to a fair hearing under article 6, but they say that no incompatibility is involved. Their notes say that the reason for that is, first, that
the direction or recommendation functions of the IPSA do not involve the determination of civil rights or obligations.
a matter of public law rather than private law rights.
there are a range of safeguards in place to ensure the fairness of the procedures of the IPSA.
an MP will have the opportunity to make representations.
to make representations to the Commissioner about the investigation
to make representations to the IPSA in light of the Commissioners report.
The right hon. Member for North-West Hampshire (Sir George Young), the Chair of the Standards and Privileges Committee, has admitted in evidence that he gave some time ago to the Committee on Standards in Public Life that even our existing procedures are not fully compliant with article 6. Yet the new procedures represent far less than we have at the moment before the Standards and Privileges Committee, and they are inadequate.
Governments view that Article 6...does not apply to the disciplining of members is...not tenable in view of the very serious consequences that might result.
We are talking about not only financial penalties, but expulsion or suspension from the House and, inevitably, the destruction of the Members political career. We have seen what can happen to Members as a consequence of the revelations in The Daily Telegraph and of previous recommendations of the Standards and Privileges Committee accepted by the House that have, in effect, meant that Members have had to decide to give up their seats at the next election as a result of what we have found out.
There is little doubt that the proposed procedure relates to the determination of Members rights. Sometimes the nature of the allegation will be such that the determination will be of a criminal chargewe have already seen some such cases before the Standards and Privileges Committee in which there has been a suggestion that a Member has acted fraudulently. Otherwise, the allegations will relate to the determination of a Members civil rights, given the seriousness of the consequences for the Member concerned. These cases will always have serious consequences for Members reputations, and may well affect their ability to pursue their livelihood. That view is reflected not only in my Committees report, but in the previous report undertaken by the Joint Committee on Parliamentary Privilege and in the recommendations made by the Committee on Standards in Public Life.
(a) a prompt and clear statement of the...allegations against the Member;
(b) adequate opportunity to take legal advice and have legal assistance throughout;
(c) the opportunity to be heard in person;
(d) the opportunity to call relevant witnesses...
(e) the opportunity to examine other witnesses
(f) the opportunity to attend meetings at which evidence is given.
We also seek to ensure that the standard of proof to be applied reflects the nature of the charge. Thus, if the charge is so serious as to amount, in effect, to the determination of a criminal charge, it should be proved beyond all reasonable doubt, but for less serious charges
the standard of proof should be the balance of probabilities. That is the basis on which the commissioner investigates a complaint and the Standards and Privileges Committee judges it now. The more serious the charge, the higher the standard that we will apply, as is only appropriate. I hope that the House will accept what I am saying about this issue.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Is there not also merit in thinking about whether we should have some procedure for appeal, so that the finding could at least be reviewed as to its merits by some appellate authority?
Mr. Dismore: The right hon. and learned Gentleman anticipates my new clause 6, which will be discussed when we reach clause 10, and I entirely agree with what he says. New clause 11 is slightly fuller than new clause 5 because it also deals with the burden of proof. I understand that my right hon. Friend the Secretary of State is minded to accept, in principle, that I am on the right lines here, but I hope that when he replies he will make clear which of this shopping list of very basic procedural minimum requirements he does not agree with. He should do so if he wishes me not to pursue this matter, but to allow it to be dealt with in the other place. I cannot see which of my proposals anyone who is expecting a fair hearing could object to. If we are to consider turning our procedures to the outside world and having independent investigation, we should apply to ourselves the same standards as we would expect any other professional disciplinary body to apply in the outside world, be it one relating to doctors, lawyers or anybody else. We should not be treated any differently, fair standards of hearing are essential, and my proposals set out what those require.
Sir Alan Beith (Berwick-upon-Tweed) (LD): My name is attached to new clause 11 and I support it strongly for the reasons cogently adduced by the Chairman of the Joint Committee on Human Rights, the hon. Member for Hendon (Mr. Dismore). I rise at this point to refer to a more detailed aspect of clause 7, and in doing so I draw the attention of the Committee to the report on the Bill that the Justice Committee produced overnight, which deals with many of the clauses and includes the Clerks memorandum, the Governments response to it and several academic notes on some of the issues.
The issue that arises in clause 7(3) is who would decide on the reasonableness of the commissioners requests, and whether a Member could seek judicial review of the commissioners actions. If in the meantime the House had used its disciplinary powers to punish a Member for failing to provide information that subsequent judicial review demonstrated that the commissioner was acting unreasonably in seeking, we would be in difficulties, because that would open the door to judicial review of the decision by the House or the Standards and Privileges Committee on the matter. That may sound like a technical point, but it is potentially important, and the Clerk has drawn attention to it.
The issues to which the Justice Committee wants to draw special attention arise mainly in clause 10, for which we recommend a route to achieve at least more measured reflection on all these aspects of privilege by setting them aside for the time being and concentrating on the parts of the Bill that set up the independent body
so that it can carry out its central and essential function. In case the Government do not accept that wise advice, we will have to ensure as we go along that we do not build in the potential danger of undesirable judicial review of the proceedings of the House.
Mr. Hogg: I can well understand that it may be necessary to require discovery of documents, but as clause 7(3) is drafted, it would enable a Member to be required to produce any information, and that raises issues of self-incrimination. Perhaps we should look carefully at the clause to see whether it can be tightened to apply only to the disclosure of appropriate documents, and does not require Members to incriminate themselves.
Sir Alan Beith: That is a sensible point and further illustrates the need for much more measured and careful consideration of some of these clauses than the procedures that we are now following allow. If we cannot reach sensible conclusions about them under this process, we should set them aside and consider them later, while concentrating on matters that can be dealt with immediately.
Mr. David Heathcoat-Amory (Wells) (Con): I support these amendments, especially those tabled by my right hon. Friend the Member for North-West Hampshire (Sir George Young). I hope that he will continue his remarkable run of getting his amendments accepted. In particular, I support what he said about the lack of proportion in the gravity of the offences to be investigated. We are all aware that there is no de minimis rule in the Bill, although inadvertent and trivial breaches may occur, through genuine mistakes, that could easily be put right.
Mr. Heathcoat-Amory: My hon. Friend is right, and it is a scandal that we did not even discuss such a vital protection yesterday. The theme running through the whole of these proceedings is that there is no case for treating this Bill as an emergency. It is a complete abuse of how we conduct proceedings that we have been asked to sign up to matters affecting the rights, immunities and privileges of this Houseand, more widely, of the people whom we representwithout discussing important clauses at all.
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