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Just think of the enormous scope that there will be for vexatious and frivolous complaints, yet according to the Bill, every one of those complaints will have to be investigated. My right hon. Friend the Member for North-West Hampshire (Sir George Young) made an excellent speech when he moved amendment 9. He
referred to the fact that when a Member is under investigation, he or she is under a cloud until it is completed. We all know from our constituencies that if we read that somebody has been arrested on a particular charge, a question mark automatically flashes up in our minds about the integrity of that person, even though we all subscribe to “innocent until proven guilty”. How dreadful it would be if 50 or 60—the number could even run to three figures—new colleagues in a new Parliament were subject to some form of orchestrated complaint, or to a series of complaints. That is quite possible.
I was very impressed by the speech of my friend, the hon. Member for Foyle (Mark Durkan), who talked about his payback. Just think of the deterrent to saying “Mea culpa.” A Member may say, “Oh, good gracious me. I didn’t look sufficiently carefully at that, and now I have signed it off and all those letters have gone out. Let’s be quiet about it.” Members could be frightened, their careers could be blighted, and they could feel deeply self-conscious. All those factors will make it less easy for them to be effective Members of Parliament.
When we finish considering the Bill today—I deplore the fact that we are dealing with it in such haste—we must bear in mind that we are agreeing a piece of legislation that will not particularly impinge on many Members in the House at the moment. By the time that it is fully in force, it will probably be the turn of the year; the Justice Secretary made that point. However, by May or June next year, there will be a new Parliament. If the Act, as it will then be, hangs above that Parliament like the sword of Damocles, just think of the effect that that could have. I therefore beg the Secretary of State to accept the amendments—or, at the very least, their spirit—and to try to inject into the Bill a note of discernment and discrimination between the trivial and the serious. If he does not, we will pass an Act that will have a very bad effect on the next Parliament.
Mr. Hogg: I just want to say a brief word about amendment 10 and new clause 11. I am a strong supporter of amendment 10, which was moved by my right hon. Friend the Member for North-West Hampshire (Sir George Young), for the reasons that were advanced by my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack). It is entirely right to say that individual Members could face vexatious complaints, and that would be very bad because it would put the hon. Member in question under a serious cloud and inhibit him or her in the performance of his or her duties.
One cannot exclude the possibility of co-ordinated and coherent campaigns against individual Members, in which vexatious complaints are made. The amendment put forward by my right hon. Friend addresses that, in part, by providing for the hon. Member in question to make a repayment, if the sum involved is modest and if there has been an oversight. The amendment would guard against errors of a de minimis kind. I think that the Justice Secretary is saying that he is minded to accept the amendment. If he does not, let us hope that he will accept the spirit of what my right hon. Friend is doing.
I note that new clause 11, which was tabled by the hon. Member for Hendon (Mr. Dismore), has the support of the Joint Committee on Human Rights, because the amendment is drawn from the text of the Committee’s report. It also has the support of the Committee
on Standards in Public Life. Those are two all-party committees of considerable authority, and the fact that they are both signed up to the new clause seems to be of considerable importance. As the hon. Gentleman said, the commissioner’s report could have dire consequences for the future of any right hon. or hon. Member affected by that report. That is even more true of the IPSA report. It is therefore important that the House should try to ensure that the process is conducted in accordance with the rules of natural justice. The hon. Gentleman’s new clause ensures that that happens.
I have only one proviso to make. The process has two stages—at least, it does at the moment, but there may be more later. The first stage is the investigation by the commissioner, leading to a report to IPSA. IPSA is then obliged to enable the right hon. or hon. Member to make representations, so there is a second stage. I am not entirely clear—this is a matter for further consideration—about whether all the protection afforded by new clause 11 should apply to both stages or one stage. That is a matter on which there needs to be some reflection. My feeling, at this stage, is that the full panoply of the protections should apply to the hearing of the representations by IPSA, and that there should be a lesser stage of protection relating to the inquiry undertaken by the commissioner. The commissioner should be obliged to accord quite a lot of protection to the hon. Member concerned, but not the full panoply that is contemplated in new clause 11. That full panoply should be confined to the IPSA hearing.
Mr. Dismore: If the right hon. and learned Gentleman looks at the construction of new clause 11, he will see that it does exactly what he suggests; it is confined to the IPSA procedure by a cross-reference to clause 7(5).
Mr. Hogg: I had not fully understood that. I am grateful to the hon. Gentleman for making that plain, because the full panoply is probably best directed at the IPSA hearing, rather than at the preliminary hearing.
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Mr. Straw: Like many of these debates, this has been an interesting one. I shall deal with the amendments by grouping them together.
First, I accept amendment 9, which was tabled by the right hon. Member for North-West Hampshire (Sir George Young) and my hon. Friend the Member for Middlesbrough (Sir Stuart Bell), as it is entirely right to add it to the Bill. I accept amendment 11, too, and there should be no argument about that. I shall also accept amendment 10, but I want to add a gloss. Sometimes one has reservations about amendments, although one accepts their overall principle. If there are questions about their drafting or their full impact, one might ask the Member who tabled them to withdraw them and wait for the matter to return at a later stage.
On amendment 10, I accept entirely the argument made by the right hon. Member for North-West Hampshire that the cases captured by proposed paragraphs (a) and (b) will be relatively trivial and so on, so it would be ridiculous to have the full panoply of a report to the authority without any discretion in the hands of the commissioner. I am therefore going to accept the amendment, but I reserve the right—of course, it will be a matter for the House and the other place—to submit a revised drafting. I will consult the right hon. Gentleman
about this, but if a member of the public—and we are not talking about vexatious complaints; if they are vexatious, hopefully they can be dismissed at an early stage—makes a genuine complaint it is important that even if there is no formal report by the commissioner, they are told what has happened. We must check that that is the case.
I am thinking of myself, too, because I was the subject of a complaint to the commissioner, which would receive consideration by IPSA, and a complaint was made in respect of a separate matter to the Electoral Commission. It made a difference to me to be able to spell out the conclusion, which was that I could continue to be a Member of Parliament. The most recent complaint was about my repetition of an entirely inadvertent error by my constituency party treasurer, who received a donation that he misrecorded, without misleading anybody—it was from one of two companies owned by the same person—and I repeated the error, because I obtained the information from him. How else could I have obtained it? The newspapers made quite a lot of the fact that I had been referred to the Electoral Commission by a Member of the House, and it took a bit of work to get them to accept that there was a further story, and that I had been cleared by the Electoral Commission. We must bear that in mind.
I hope that that deals with those amendments satisfactorily. The right hon. Member for North-West Hampshire and my hon. Friend the Member for Middlesbrough have continued their clean sweep—every one a winner—so I shall now turn to the other amendments. The hon. Member for North Essex (Mr. Jenkin) tabled amendment 45, which states:
“The IPSA must ensure that any member who is subject of an investigation is provided with independent advice and counsel on all matters relevant to that investigation.”
It is important that we do not over-egg the pudding and seek to provide ourselves—and the implication is that this would be provided free—with something that is not available to others in similar circumstances. The availability of civil legal aid has been restricted for a long time. Although the costs of such aid continue to rise, eligibility, particularly outside the area of family law, is restricted. [ Interruption. ] The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) is confirming that that is the case. Civil legal aid is also subject to means-testing, and it would be improper of the House to establish by means of a single amendment—I know that the hon. Member for North Essex does not intend this—a Rolls-Royce of a legal aid scheme for ourselves that is not available to others.
We all have constituents in that situation—I have one at the moment—who are subject to a process by their employer that could lead to dismissal and be reputationally terminal. They do not receive legal aid, although they may receive legal assistance from their trade union, so we must bear that in mind in relation to the question of fairness.
Mr. Jenkin:
As the right hon. Gentleman rightly said, I do not intend that the Exchequer should end up providing legal aid to Members of Parliament. I am talking about practical, reasonably expert advice that might result in a Clerk of the House saying, “Go and get a lawyer. You’re in trouble.” Before reaching that stage, there should be provision for some advice. If I
may say so, the exception for Members of Parliament is justified in this case, given that we are creating offences that apply only to Members of Parliament, who are particularly vulnerable to attack from members of the public who may have grudges against us for some peculiar reason.
Mr. Straw: We will come on to the offences later, but it is fair to point out that the House has been ready to impose similar offences on other bodies. [ Interruption. ] The hon. and learned Member for Beaconsfield (Mr. Grieve) is mouthing derogatory comments about the provision of those offences, but when the Scotland Act 1998 was before Parliament I do not recall any adverse comments from the Conservatives.
Mr. Jenkin: It was not timetabled.
Mr. Straw: Some of the parallels are with the Local Government and Housing Act 1989, and my recollection is that that measure was timetabled too, or subject to a guillotine.
Mr. Grieve: I remember the generality of discussions on the Scotland Act, but I certainly would not be able to recall exactly what I said in the course of that debate. The Secretary of State must accept that since I have been in the House I have said pretty consistently that the tendency of the House, and particularly the Government, to impose new criminal sanctions—I think that more than 3,000 have been created since 1997, mostly of a regulatory nature—appears to have done nothing to benefit our country whatsoever, and is a habit that we would do well to cease.
Mr. Straw: We try not to have criminal offences unless they are necessary. The hon. and learned Gentleman makes a nice rhetorical point, but when one goes into the detail of those offences, one discovers far less enthusiasm for removing them from the statute book. I have had a lot of correspondence from the leader of the Liberal Democrats, who has waxed eloquent on those 3,000 offences. I have asked him to name which of them he would repeal, were he ever in a position to do so. We have got it down to two out of 3,000. I also set that homework to the hon. and learned Gentleman. I accept that Members will need advice, but provision does not necessarily need to be made in the Bill. They ought to receive advice—indeed, advice is available—here, but I will certainly take the proposal away and think about it. I promise the hon. Member for North Essex that I will do so.
I come now to amendment 48 and new clauses 5 and 11. It is probably sensible to look at the more comprehensive new clause 11 first. No one can argue with the fact that the methods adopted by the commissioner and the authority’s proceedings have to be fair. Clause 7(6) seeks to capture that injunction, and I am grateful to my hon. Friend the Member for Hendon (Mr. Dismore) and his Committee for their further, rapid consideration of the matter. However, there are some issues that we need to think about. I invite my hon. Friend to accept that we do not have a vote on the matter, and I in turn will accept that what is in subsection (6) will need to be added to, though perhaps not in the detail he proposes. There is one point that I need to raise in respect of
subsection (g), which is the standard of proof, but I accept that there should be greater clarity about the rights of those who are subject to a report by the commissioner.
Let me pick up the points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the name of whose constituency has changed with extraordinary rapidity, although I dare say the boundaries have almost always stayed more or less the same. He argued—I paraphrase—that the commissioner carries out a preliminary investigation, which must of course be fair. Now that we have accepted amendment 10, the commissioner, if he so judges, makes a report to the authority. Plainly, less elaborate processes can apply in respect of that initial consideration by the commissioner.
I emphasise the point that, paradoxically, the overall process that we are providing under the Bill is more substantial and provides more inbuilt protections for Members— [Interruption.] Yes, it does, I say to my hon. Friend the Member for Hendon—than the existing process. Why? Because there will be a complaint, whether it is a self-referral or an external complaint, to the commissioner and an investigation by the commissioner. The commissioner then produces a report, which goes to the authority. We are making extensive provision for an arm’s length relationship between the authority and the commissioner.
The authority considers the matter and can make a finding. The finding is either, under clause 8(1), which we shall come on to deal with in more detail, to require the Member to make a payment or to correct an omission or an inaccuracy in the register, and/or to recommend to the House of Commons Standards and Privileges Committee the exercise of its disciplinary powers. When the matter goes to the Committee, the normal rights of Members before the Standards and Privileges Committee, and from there to the Floor of the House, apply. Although under our current proposals the authority may recommend that a Member be suspended or expelled, the decision on that or a further recommendation is for the Standards and Privileges Committee and then for the Floor of the House.
Mr. Dismore: My right hon. Friend is outlining a series of steps, of which there is one more than we have now, in practice. At present the commissioner reports to the Standards and Privileges Committee, and we report to the House. Under the Bill, the commissioner reports to IPSA, the Standards and Privileges Committee and the House. An extra stage does not mean extra fairness; it simply means an extra stage in the process. My question to my right hon. Friend is the one that I asked earlier: which of the elements (a) to (g) does he disagree with in principle as part of the IPSA process?
Mr. Straw: The one that I am particularly concerned about is that related to the standard of proof, (g). We need to think very carefully about that. This is about a recommendation by the authority, not about the determination by the Standards and Privileges Committee. I am not an employment lawyer, as I think my hon. Friend was. I want to think about the matter. I also want the opportunity to go through the drafting of the new clause in more detail. That is not in the least a complaint to my hon. Friend. It is a recognition that we are proceeding with some rapidity. His report came out yesterday and we need to think about the matter.
Mr. Grieve: Two things—first, the Secretary of State says he needs to think about the report. We need to think about it as well, but the trouble is that our consideration of the Bill will all be finished at 7 o’clock this evening. Secondly, I would have more sympathy with his concern about having a criminal standard of proof—the point raised by the hon. Member for Hendon (Mr. Dismore)—if it were not for the fact that the system of investigation, when linked to clauses 8 and 9, is a seamless line potentially moving towards a criminal prosecution.
Because the Government have set up the structure in that way, and—I come back to this point—given powers to the commissioner of a kind that I do not believe he needs to do his job properly and make sure that our allowances are properly given to us, we will be ratcheted into much higher standards of proof. If this is the model that the Government insist on adopting, which I wish they would not, the line taken by the hon. Member for Hendon will have to be followed.
Mr. Straw: I want to remind the House of this, and it is fundamental: it is astonishing how quickly the focus of a debate and of concern in the House can move, but there is a public outside that remains highly sceptical, as well as cynical, about the way we have operated our affairs up to now. We must bear that in mind all the time. One of the major problems that has been faced in this terrible expenses scandal is that no one outside the House accepted the legitimacy of decisions made by the Fees Office or any other part of the House about whether an expenses claim was or was not acceptable. That is why there must be an external adjudication of such decisions.
The hon. and learned Gentleman seems to want it both ways. Of course we must get it right, but if there is to be an external authority, it must be able to come to some decisions, in a parallel way to decisions that would be made by similar bodies with similar tasks external to a particular profession and so on, not with lesser rights to the individual, nor with more. We need to end up with a situation where, if there were misconduct—not inadvertence, error or light negligence, but misconduct—by a Member, that could lead to a criminal prosecution and/or discipline in the House, and equally, where there is an allegation against a Member, but that allegation falls to be dismissed by the authority—or subsequently by the Standards and Privileges Committee, but let us leave it at the authority—that is accepted as having authority behind it.
I understand the point that my hon. Friend makes, which we will consider. We will respond in the other place. This evening will not be the end of proceedings on the Bill. It will go to the other place and come back here. One of the serious concerns that I have about a raft of amendments that have been tabled—not, I may say, by the right hon. Member for North-West Hampshire (Sir George Young)—is that their overall effect is to emasculate and undermine the basic purpose of the Bill, which was accepted by Members on all sides and all three party leaders.
Mark Durkan:
The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) hit on a very serious point when he asked whether new clause 11 would end up applying both to the investigation stage and then to the adjudication stage by the authority. The
hon. Member for Hendon (Mr. Dismore) clarified that it would apply only to the authority stage because it refers specifically to subsection (5). But let us remember that subsection (5) states:
“The IPSA must determine—
(a) procedures in relation to investigations under subsection (1);
(b) procedures in relation to complaints under subsection (2)(c);
(c) procedures in relation to the circumstances in which a report under subsection (4) is to be published.”
So IPSA clearly applies to two stages in relation to the investigation, and proposed new paragraphs (a) to (g) of subsection (5) would apply separately in relation to the procedures, because new clause 11 begins with:
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