| Previous Section | Index | Home Page |
I am especially concerned by the lack of proportionality in these clauses. As I understand it—if I am wrong, I trust that the Justice Secretary will correct me—the same rules will apply to trivial or inadvertent offences. Many such offences will be referred to the commissioner as part of the party political contests in each constituency. Many people are itching to refer to the new commissioner matters that may be important locally but which, in the great scheme of things, are oversights that could be easily corrected. The commissioner will have to investigate all such matters, in order to decide whether they are unimportant or trivial, and will then have no option but to make a report to IPSA on his findings, under clause 7(4). The very fact of making any inquiry—even if the conclusion is that no action need be taken—must lead to a report. That will be immensely bureaucratic, and it is likely that in the intervening weeks the Member’s local paper will highlight the fact that he or she is under investigation by the commissioner. It is very important that we now try
to assess what the commissioner will have to do, and to relieve him of the burden of having to make an investigation and report on unimportant matters.
My second point confirms that made by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) about the possible role of the courts in this matter. Serious offences will of course be subject to the criminal law on fraud, theft and false accounting. In addition, and unnecessarily, we will also import some more criminal offences into the Bill. I am especially concerned by the word “reasonably” in clause 7(3). It could be judiciable—it will, after all, appear in statute law. I can imagine a case in which the commissioner gets into a dispute with a Member under investigation—for what may well be a serious matter—who resists having to disclose personal tax records. The commissioner may demand those records, on the grounds that that is the only way in which the evidence can be found for income received that should have been disclosed. Or the financial disclosure requirements could require the production of names and addresses of professional clients or customers, in the case of a business. The Member concerned may consider, reasonably, that that would be improper and that he owes a duty of confidentiality to his customers or clients. So there may be a genuine dispute between a Member and the commissioner—an external person, appointed by the Crown and therefore with no particular duty to or affection for the House, and driven by public opinion. The Member concerned may feel that he is on the receiving end of unfair inquiries.
As I understand it, such a dispute would be judiciable, and therefore the court would have to decide what was reasonable. In that case, the court would be interfering in matters that should remain within the purview of the House.
Mr. Hogg: It is not only as my right hon. Friend understands the point, but as the Clerk understands it. In his evidence to the Justice Committee, the Clerk made exactly that point.
1.30 pm
Mr. Heathcoat-Amory: I am grateful to my right hon. and learned Friend for pointing that out. I think that that gives it additional weight and authority, and we should all be concerned when a servant of this House raises such points. The Clerk cannot make a speech; he relies on us to reflect his concerns, which is what we are doing.
It is a regrettable fact that the courts might be required to make a judgment on what is essentially a dispute between the House and the commissioner, with unpredictable consequences. If I understood the right hon. Member for Berwick-upon-Tweed correctly, if the House decided to discipline the Member concerned and it was subsequently found that the information was demanded unreasonably, the court would be interfering directly in the disciplinary matters of this House. If there is something on which we all agree, it is the fact that the House must retain the ultimate sanction to discipline its own Members. If I am wrong about that— [ Interruption. ] No, I think that the Justice Secretary is agreeing with me. Will he explain, then, how that sanction is not put at risk if a court can declare that disciplinary
action by the House is unreasonable because the commissioner had been unreasonable in the requiring certain information from a Member under investigation?
Mr. Carmichael: I, too, shall endeavour not to detain the Committee overlong. We have before us a range of amendments. The amendments tabled by the right hon. Member for North-West Hampshire (Sir George Young) seem, as others have said, sensible and workable. They represent an improvement to the mechanism of the Bill and I hope that the roll that the right hon. Gentleman is on will continue.
I was impressed by some of what the hon. Member for North Essex (Mr. Jenkin) said about the availability of informal legal advice—I think that that was the way that he put it. Experience teaches me, however, that legal advice is never informal. One either gets legal advice or one does not. It seems to me that his suggestion, superficially attractive though it is, is a parliamentary equivalent of the legal aid duty solicitor scheme. For many years, I trawled around the police cells of the north and north-east of Scotland as part of that admirable scheme, and although I find the proposal not unattractive, even a legal aid duty solicitor has a direct lawyer-client relationship from which there can be no departure. The standard of service and care, as well as the duty of care, that is owed by the legal aid duty solicitor to the client in the cells is exactly the same as that which would be owed by any City solicitor to a blue-chip client.
Mr. Jenkin: I did not say “informal legal advice”, but “advice”. In fact, my amendment referred to “advice and counsel”. Let us suppose a Clerk of the House was allocated the duty of advising Members who were the subject of complaints, or of advising Members on how to conduct themselves if they believe that they have broken the rules. It seems quite reasonable that an hon. Member should have someone in the House to turn to. They might well say, “Well, in your circumstances you should go and get legal advice,” but we should avoid somebody’s having to take that step initially as it might be quite a low-level complaint. There should be some way of dealing with low-level complaints without resorting to lawyers.
Mr. Carmichael: I take the hon. Gentleman’s point and I do not want to labour it because I do not know whether he will seek to press his amendment to a Division. There is certainly merit in the notion, but my concern is that once we come to the practicalities of how to make this work, the advice provided will effectively be legal advice. It would be a brave Clerk who would advise a Member not to take legal advice in those circumstances.
Mr. Hogg: Although one might argue about the legalities, surely the proper position is to say that the hon. Member should have an opportunity to take legal advice. It would be for the hon. Member to determine where he got that advice from and how he paid for it, but he should have an opportunity to take legal advice and to be represented by that adviser if he so chooses. Surely that is a requirement of natural justice.
Mr. Carmichael: That is one of the most basic norms of natural justice, and once we go down the route that the Government are taking us down with this clause, that is the inevitable consequence.
That point brings me to new clause 11, tabled by the hon. Member for Hendon (Mr. Dismore). I thought that my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) succinctly and cogently showed why I would also support the new clause. It is a basic statement of best practice and I do not see what part of it could be objected to. I, too, will listen to the Secretary of State when he responds on that point.
Let me return to the practicalities of all this. The hon. Member for Hendon has tabled a new clause that will rebalance the rights and obligations under the Bill in a way that is very necessary. However, if we go down that track, what is there by way of effective investigation? It is in the nature of investigation that we do not always know what we are looking for when we start. Although much of what we have here provides necessary protection for the rights of the person being investigated, as consequences could subsequently flow to him, will we have an inquisitorial process that achieves the objective that we aim it to have at this stage?
Mr. Dismore: Under the existing arrangements between the commissioner and the Standards and Privileges Committee, there is an obligation on a Member to co-operate with the inquiry. Co-operating with the inquiry does not preclude a Member’s having the benefits of due process.
Mr. Carmichael: It is a question of checks and balances. The system at the moment is reasonably well balanced because the consequences that can flow from an investigation are that much more restrictive. It is clear from the Bill, and from clause 9 in particular, that a lot more could follow by way of consequences in the future. That is where the inquisitorial element, I fear, could become deficient at the end of the day. The hon. Gentleman’s amendments are good, well founded and necessary. However, I fear that as a consequence of the effectiveness of the Bill as a whole, we will be left with a system that will not work as well as it ought to. That is the consequence of the Government’s having proceeded in the way in which they have. They persist in that, notwithstanding the evidence that has come from the Joint Committee on Human Rights, chaired by the hon. Member for Hendon, and the Justice Committee, chaired by my right hon. Friend the Member for Berwick-upon-Tweed.
Mark Durkan (Foyle) (SDLP): The right hon. Member for North-West Hampshire (Sir George Young) expressed the wish that his roll would continue. I want to back that wish in respect of amendments 9, 10 and 11.
I am of an age where in my Church we still said the old-fashioned confiteor, with “Mea culpa, mea culpa, mea maxima culpa”—“Through my fault, through my own fault, through my own most grievous fault.” Clearly, we have to ensure that the system can allow for occasions where Members spot some discrepancy or indiscretion in relation to returns, claims, mistakes that were made by their office or the inadvertent misplacement of claims. When they identify them, they need to be able to have them corrected properly without being told, as the hon. Member for North Essex (Mr. Jenkin) said, that although they have corrected the error themselves, they still have to await the peril or jeopardy of a complaint or to be subject to some wider observation. Self-correction must be able to be taken and we need to ensure that the
system recognises the difference between venial sins and sins of omission and the mortal sins and more serious sins of commission. I believe that the amendments go some way towards doing that.
Many of us have been looking at various claims and other things, and I found myself listed among those who had made repayments in the recent context. I refused an offer of a new mobile phone from O2, and was then told that I would get £200. I thought that that would be credit on my mobile phone bill, but instead I got a cheque for that amount as cashback. Normally, I claim most bills for the phone on expenses, so I said that the cashback should go back to that source of payment, which is the House of Commons. The £200 payment was not in respect of any specific claim, or any claim that was wrong or undue, but it constituted a repayment in the context of everything else that was happening.
Clearly, hon. Members must be allowed to make sensible and proper judgments without finding themselves with some sort of criminal record. We are doing something that is on a par with tidying up The Highway Code, and it should not end up with people being investigated as though they were involved in some sort of federal case.
I have some sympathy with the situation that the hon. Member for North Essex (Mr. Jenkin) found himself in. He was caught in a conundrum but, for the reasons put forward by the hon. Member for Orkney and Shetland (Mr. Carmichael), I am wary of creating a system that means that everything could automatically be the subject of legal advice. People may feel compelled to seek that advice, but the fact that such advice was being sought could also became a matter of record and freedom of information.
The way that the hon. Member for Hendon (Mr. Dismore) presented new clauses 5 and 11 made them sound reasonable and compelling, but again I have some concern that investigations could turn into hearings. We must not let the process grow beyond its limits, and I believe that the test will be how we strike that balance.
Mr. Dominic Grieve (Beaconsfield) (Con) rose—
The Second Deputy Chairman of Ways and Means: Mr. Dominic Grieve.
Mr. Grieve: This has been an interesting debate, and I hope that the Secretary of State will be able to respond positively to the points that have been raised.
Sir Patrick Cormack: Some of us want to take part in it.
The Second Deputy Chairman: Order. Let me make it clear that there is no reason why hon. Members may not take part. Those hon. Members who stand are called to speak in the way that the Chair thinks appropriate. Mr. Dominic Grieve.
Mr. Grieve:
Thank you, Sir Michael. I hope that the Secretary of State will be able to respond positively. It is clear that clause 7 moves us towards a much more structured system of investigation than we have at present. Whether or not the current investigation regime falls
within what we like to call parliamentary privilege, it certainly happens in-House. I am the first to accept that much of what will be investigated probably will not concern parliamentary privilege in any way at all, and that is why investigating whether an MP has misclaimed or overclaimed is of very little consequence to the wider constitutional framework of this country.
However, if we move down this road, it is important that we acknowledge that we will have to look very carefully at the fairness of the system that we introduce. It will come in for more scrutiny, and my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) was right to say that it will be justiciable—that is, anyone unhappy with any aspect of the proceedings will be able to seek judicial review.
In that context, the amendments put forward by my right hon. Friend the Member for North-West Hampshire (Sir George Young) are extremely sensible. They would allow people to self-refer, but the most telling proposal is for a system that would allow very minor matters to be handled without a report having to be made.
One problem that we will face was touched on by the hon. Member for Foyle (Mark Durkan). In a sense, Members of Parliament are sole practitioners, and we handle offices and budgets that are quite substantial. Also, I suspect that most Members of Parliament work rather longer hours than the average, and that the administration of our offices is not the thing that we do best. Our capacity for making mistakes is very great.
1.45 pm
When our documents going back to 2004 were published, I looked through them and found that it was not difficult to pick out examples of things that might have been done differently. Perfectly reasonably, most of us tend to sign off on things presented to us by members of staff. Keeping our office expenses under proper scrutiny is not what we are likely to do best.
We need a system that recognises the importance of self-regulation. People must be able to own up quickly to making mistakes without the fear that they will be dumped on and dragged through the mud. Also, we need a system that can reflect the de minimis rule: that is, we must ensure that people do not have to go through convoluted procedures for absolutely minimal mistakes. Those points are dealt with by amendment 10, which I consider to be extremely sensible.
The hon. Member for Hendon (Mr. Dismore) introduced new clause 11, which is a substantial improvement on what we have at present. I do not know whether he is minded to press it to the vote, and I appreciate that it may be possible to do something about the proceedings when the Bill comes up for further consideration elsewhere. My judgment, however, is that new clause 11 is a substantial improvement, and my concern is that not putting a similar provision in the Bill will lead, because of justiciability, to a decision by the commissioner being overruled or overturned.
I also have great concerns about the potential impact of the procedures on disciplinary decisions. Such decisions may be found to be in conflict with decisions taken by the commissioner that are subsequently reviewed and found to be wanting. I shall say more about this in connection with clause 8, but I do not think that the House can lightly ignore the problem.
Yesterday, we discussed at considerable length questions of where Parliament’s rights will be intruded on. The problem is not so great with clause 7, but the fact is that the clauses cannot be looked at in isolation. I make this point because the Secretary of State may wish to respond now as well as later, but the linkage between investigations, enforcement and offences must be looked at as a whole.
I have the most serious concerns about what we are doing. If we confine the commissioner’s activities to looking at our expenses and salaries, there will be no great difficulty, and that was exemplified in the evidence given yesterday by the Clerk of the House to the Justice Committee. However, conflicts will start to arise once we stray outside of that, and the potential will grow for the courts to intrude into the House’s affairs in ways that touch on our constitutional responsibilities. I hope that the Secretary of State will be open-minded now—I suspect that he will be, as it has been hinted that he may accept some of the amendments—and that he will also bear what I have said in mind when we consider later amendments.
Finally, my hon. Friend the Member for North Essex (Mr. Jenkin) has also tabled some amendments that highlight areas of anxiety in exactly the same way. I hope that the Secretary of State will be able to provide some reassurance that those problems will be addressed. It may be that they can be addressed now, but they could also be dealt with by looking at the matter in its totality. We need a proper set of rules to govern investigation and inquiry, and those rules should also cover hon. Members’ ability to get proper advice as an investigation proceeds.
Sir Patrick Cormack: I shall be brief, but there are two points that I would like to put to the House. Parliaments tend to get known by particular names. The other week in the Chamber, the hon. Member for Cannock Chase (Dr. Wright) talked about how this Parliament would come to be known in the future. I fear that it may go down as the tarnished or tainted Parliament. Among those of us who have sat in this Chamber in the past few weeks, it will certainly go down as the depressed Parliament. I look forward to the next Parliament and hope that its Members can perform their duties untrammelled, both here and in their constituencies.
However, we must have regard to one overriding fact in that context. The new Parliament, no matter who decides to go or stay, will contain many new Members. Some papers calculate that half the new Parliament could be composed of Members who have never sat here before. However many new Members there are, it will be a lot. Those new Members will come here, as we all did at one stage, somewhat overwhelmed by the honour of being here, I trust, and somewhat perplexed by the rules of our procedures, which we all have to try to learn. There will be a new dimension, too, provided by the Bill, which the House is rushing through this week. It worries me very much that that new Parliament could come to be known as the frightened Parliament, or the blighted Parliament.
| Next Section | Index | Home Page |