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“The procedures referred to in subsection (5)”.
So three sets of procedures are referred to, and they could apply three times, but that still does not deal with what we were assured the provision was meant to deal with: how the authority would approach the matter on receiving the report and the findings. Clearly, something needs to be remedied and clarified if we are to get the measure right.
Mr. Straw: I am extremely grateful to my hon. Friend, who made the point better than I did.
Mr. Dismore: I accept that new clause 11, in relation to where it fits in the jigsaw of the process, might need tidying up. That is a fair point, but I am more concerned about the principle of the requirement for a fair hearing, and my right hon. Friend still has not said whether he objects in principle to proposed new paragraphs (a) to (f) as far as IPSA is concerned. They are the minimum requirements of natural justice and of article 6.
My right hon. Friend expressed his reservations about proposed new paragraph (g), but it provides for exactly what the Commissioner for Standards and Privileges does now. If my right hon. Friend says that the Bill takes nothing away from the rights of Members, he has nothing to fear from proposed new paragraph (g), because the commissioner applies a much higher standard in the most serious cases than he does in the more trivial ones, and so he should, because that is the requirement of article 6.
Mr. Straw: I have made my point in response to my hon. Friend, and I am glad that he accepts that his new clause will require some substantial revision, or what he calls tidying up. But we do not dispute the basic purport of the new clause.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I rise to support fully the hon. Member for Hendon (Mr. Dismore). There is currently a difference between the standard of proof in a very serious offence and the other end of the scale, and the new clause’s instruction to IPSA would be a good thing, not a bad thing. It would not emasculate the Bill; it would put more meat on the bone.
Mr. Straw: In the interests of progress, Sir Michael, I think I have made the points I have made. I commend to the House the amendments that I suggest that we accept, and I hope that, on those amendments that we cannot accept, the invitations that I have made to hon. Members will prove acceptable.
Amendments made: 10, page 4, line 42, at end insert—
‘(4A) No report shall be made by the Commissioner—
(a) in any case where the member concerned has agreed that he has failed to register or declare an interest, if it is the Commissioner’s opinion that the interest involved is minor, or the failure was inadvertent, and the member concerned has taken such action by way of rectification as the Commissioner may have required within any procedure approved by the IPSA for this purpose; and
(b) in any case involving the MPs’ allowance scheme, or the use of facilities or services, if the Commissioner has with the agreement of the member concerned referred the matter to the IPSA for the purpose of securing appropriate financial reimbursement, and the member has made such reimbursement within such period of time as the Commissioner considers reasonable.’.
Amendment 11, page 5, line 5, at end insert—
‘(5A) In determining the procedures, the IPSA must consult—
(a) the Leader of the House of Commons,
(b) the Committee on Standards and Privileges, and
(c) any other person the IPSA considers appropriate.’.— (Sir George Young.)
The Second Deputy Chairman: Does the hon. Gentleman wish to press his amendment?
Mr. Jenkin: In view of the Secretary of State’s assurances, perhaps my amendment could be dealt with administratively in the House rather than by legislation. I beg to ask leave to withdraw the amendment.
The Second Deputy Chairman: It has not actually been moved. Mr. Dismore?
Mr. Dismore: I certainly will not press my new clause to a vote now, Sir Michael. I expect that my Joint Committee on Human Rights colleagues in the Lords may well table a similar amendment to ensure that the matter is not overlooked.
Clause 7, as amended, ordered to stand part of the Bill.
Mr. Grieve: I beg to move amendment 32, page 5, line 22, leave out from ‘IPSA’ to end of line 25 and insert
‘may refer to the House of Commons Committee on Standards and Privileges any findings it may make in relation to any member in the exercise of its functions.’.The Second Deputy Chairman: With this it will be convenient to discuss the following:
Amendment 17, page 5, line 25, at end insert—
‘(2A) The Committee on Standards and Privileges may accept, modify or reject as it sees fit a recommendation under subsection (2).’.
Amendment 65, page 5, line 25, at end insert—
‘(2A) Any recommendation under subsection (2) shall be deemed to be proceedings in Parliament as expressed in the Bill of Rights 1689 notwithstanding any other provisions of this Act.’.
Amendment 33, page 5, line 26, leave out ‘or to make a recommendation under subsection (2).’.
Amendment 46, page 5, line 28, at end insert
‘, and must ensure that the member is provided with independent advice and counsel on all matters relevant to the said direction or directions.’.Amendment 34, page 5, line 29, leave out subsection (4).
Amendment 18, page 5, line 34, leave out subsection (5).
Amendment 19, page 5, line 38, leave out subsection (6).
Amendment 20, page 5, line 38, leave out
‘Speaker’s Committee on the Independent Parliamentary Standards Authority’
‘Committee on Standards and Privileges.’.
Amendment 21, page 5, leave out line 43.
Amendment 66, page 6, line 2, at end insert—
‘(7A) Any statement (“protocol”) prepared in accordance with subsections (6) and (7) shall be deemed to be proceedings in Parliament as expressed in the Bill of Rights 1689 notwithstanding any other provision of this Act.’.
Amendment 64, page 6, line 3, leave out subsection (8).
Amendment 36, page 6, line 4, leave out from ‘powers’ to end of line 5.
Amendment 67, page 6, line 5, at end insert—
‘(8A) Where any criminal investigation or proceedings are concerned with the same or related matters which are the subject of an investigation by the Commissioner or of a recommendation by IPSA, the criminal investigation or proceedings shall take precedence, subject to the agreement of the House of Commons Committee on Standards and Privileges.’.
Amendment 97, page 6, line 6, leave out subsection (9).
Amendment 12, page 6, line 6, leave out ‘is, or’.
Amendment 22, page 6, line 10, leave out subsection (10).
Mr. Grieve: We now come to what I think are the core clauses, and in my judgment they start to cause considerable difficulties. I hope that the Government will look constructively at ways of avoiding those difficulties, so that the Bill does what the public want—ensure that we are properly regulated, but not destroy the House’s ability to be independent and to carry out its job properly on behalf of the electorate.
The clause provides a mechanism of enforcement, and subsection (1) is completely uncontroversial. It provides that
“IPSA may direct a member of the House of Commons—
(a) to repay...within a specified time an amount paid...under the...allowances”,
“(b) to take any steps necessary to correct an omission or inaccuracy...in the (register of financial interests).”
I have concerns about subsection (2), however, which states that
“IPSA may recommend to the House of Commons Committee on Standards and Privileges that the House should exercise any of its disciplinary powers in relation to a member of the House.
The IPSA may publish a recommendation that it has given.”
It seems quite clear from the wording that IPSA will be able to make a specific recommendation to the Standards and Privileges Committee about how an hon. Member is dealt with in respect of a transgression. That, I assume, includes everything from an apology in the Chamber, through a suspension from the service of the House, to—the House has exercised this once since the second world war—the expulsion of a Member.
The problem is that the Standards and Privileges Committee will then have to consider whether it agrees with IPSA’s recommendation. If the Committee decides to agree, any public perception that it has been influenced by an outside body in reaching its own decision will be unfortunate. Of course, the Committee might decide for whatever reason that it wants to impose a different penalty, which need not be less severe than that which IPSA recommends. However, as the clause stands, it will embody in statute a specific reference to the Standards and Privileges Committee and to its powers, and they would then be judicially reviewable through the courts.
The consequence of the Committee’s powers being judicially reviewable through the courts goes to the absolute heart of Parliament’s independence and what the Bill of Rights of 1689 was all about, given its insistence that what this Parliament does cannot be called into question elsewhere. From the current drafting of subsection (2), I really do not see how we can escape that conclusion. Indeed, it is noteworthy that witnesses who submitted either written or oral evidence to the Justice Committee stated very clearly that that outcome was undesirable. Professor Dawn Oliver said:
“(2) may be omitted. The House would in any event be able to exercise its disciplinary powers under existing privilege rules.”
In earlier evidence she expressed her deep concerns about the manner in which the House might proceed with a major constitutional change in respect of parliamentary privilege.
Mr. Cash: No doubt my hon. and learned Friend has also read the evidence from the Clerk of the House. He said unequivocally that
“clause 8(2) brings in the Standards and Privileges Committee”,
“what would happen if Standards and Privileges concluded that it could not accept a recommendation from the Commissioner, perhaps the recommendation was too severe on the Member, the degree of punishment or whatever was being recommended, the whole matter would then have to be resolved in the courts.”
There then followed further evidence from the Speaker’s counsel making that position absolutely crystal clear.
Mr. Grieve: I thank my hon. Friend for saving me the trouble of having to read out that very passage; I was about to move on to it, but I could not have made the point better than he has. Both Professor Dawn Oliver and the Clerk of the House have expressed the same concerns. It is worth reading the totality of the evidence, including the written submissions. It is crystal clear that clause 8 embarks on issues that go to the very heart of Parliament’s independence.
2.30 pm
There is a solution. It is amendment 32, which would delete clause 8(2) and replace it with the words
“may refer to the House of Commons Committee on Standards and Privileges any findings it may make in relation to any member in the exercise of its functions.”
“Findings” refers to findings of fact. IPSA would simply say to the Committee on Standards and Privileges that it had carried out an investigation, concluded that there had been a misclaim of x thousand pounds and thought that that should be drawn to the Committee’s attention. That would be a completely neutral thing to do, because it would not be accompanied by any recommendation. The amendment would go a long way towards solving the problem.
Mr. Charles Walker (Broxbourne) (Con): I have a problem with IPSA. What would happen if the compliance failure was IPSA’s failure? If a Member made a claim in good faith and IPSA got it wrong, the Member would carry the can for IPSA. Over the past few months, a lot of Members have carried the can for compliance failures that were out of their hands.
Mr. Grieve: It is clear from our debate on clause 7 that the actions of the commissioner and IPSA will be judicially reviewable. I have made my point to the Minister and the Secretary of State. If we confine those external regulation functions to our salaries and allowances, that might lead to judicial review proceedings but it would not have a major impact on the independence of Parliament in doing its work.
The difficulty is that, as one starts reading clause 8 subsection by subsection, one sees that it goes further and further into key functions of Parliament and its independence that have hitherto been regulated solely by the Standards and Privileges Committee. They are non-justiciable and are protected by the operation of the Bill of Rights 1689. The House needs to concentrate on that issue if we are to ensure that we can continue to carry out our work properly.
Mr. John Redwood (Wokingham) (Con): My hon. and learned Friend is making a powerful case. Under clause 8(6), one of IPSA’s first duties is to try to work out the comprehensive muddle that the Bill is making of the situation. It would have to prepare a statement
“with the agreement of the Speaker’s Committee on the Independent Parliamentary Standards Authority”
about how it, the commissioner, the Standards and Privileges Committee and other authorities could make sense of this complete jumble. Does that not prove that, even according to the Government’s own words, the thing is a comprehensive mess?
Mr. Grieve: I agree entirely with my right hon. Friend. It all shows how poorly thought through the Bill is. It is rushed legislation. Each of the witnesses who gave evidence—except the Clerk of the House, whose ability to make such comments is a bit fettered—expressed horror at the speed with which the legislation was being carried through. All the independent witnesses asked what on earth the Government were doing in rushing ahead with something of such fundamental importance to the workings of democracy in this country, without giving the matter some proper thought. We will have only two hours on Report this afternoon, and there will probably be no Third Reading. Frankly, the whole thing is a scandal—but we will have to make do with what we have.
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