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My amendments may be imperfectly drafted and they may not create a perfect envelope around the activities that need to be enveloped, but I honestly believe that they provide a solution to the Secretary of State’s problem. He wants independent regulation, he wants the independent regulator to be able to look at all the evidence, and he wants the commission to be able to conduct investigations as freely as possible, but he really does not want the courts interfering with these processes and he does not want to provide an avenue for the courts to look at what has been happening in Parliament and to have a chilling effect on free speech.

If my amendments are accepted, along with those in the name of my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) that strike out the final subsection of clause 10, we will have created a perfect envelope to allow the Bill to go forward—enveloped by privilege exactly as I believe the Secretary of State intends, but as the Bill fails to deliver at the moment, which is completely unacceptable.

Sir Stuart Bell (Middlesbrough) (Lab): I am grateful, Mrs. Heal, for the opportunity to participate in the debate on what the hon. and learned Member for Beaconsfield (Mr. Grieve) has said is possibly the heart of the Bill. I shall speak to amendments 18 to 21, which I tabled.

The essence of this part of the Bill, as the hon. Member for North Essex (Mr. Jenkin) has said, is the Independent Parliamentary Standards Authority, which is not a matter of question in the House, as it has been fully accepted and agreed by the parties themselves as well as by the party leaders. What has been a cause for concern is the determination of privilege in this House, and particularly whether it should stay within its precincts or whether, in line with Congress in the US, it can be subordinated to the Supreme Court in that case, or to the courts of law in our case. It has always been my view that conveying parliamentary privileges to the courts for them to determine our actions, our speeches, our proceedings in Committee and the like not only destroys the essential pillar of our democracy—the pillar that protects to the Member of Parliament on the Floor of this House—but prevents a Member from seeking to defend the constituents who sent him here. The principle
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of redress would be somewhat diminished if our proceedings were to be interpreted elsewhere and a determination of them made elsewhere. That would certainly destroy the essence and basis of the House of Commons as we know it, which would do a great disservice to past generations and also to future generations of parliamentarians.

I am grateful to Dr. Malcolm Jack and the Clerks for putting together a very important and significant document to deal with the problem. If I may, I will happily paraphrase liberally what it says. As I understand clause 8, which deals with enforcement, it raises a number of questions of principle relating to privilege. Clause 8(2) identifies recommendations to the Committee on Standards and Privileges that would be covered by parliamentary privilege, but if the Committee declined to act on a recommendation, it could presumably become the basis of legal proceedings in which the Commissioner, or someone else, sought to require the Committee to comply. In my humble and respectful submission, Mrs. Heal, it is not enough to argue that clause 8(2) speaks only of a recommendation, as the extent to which a reasonable recommendation should be accepted would itself become a matter for determination by the courts and a matter of interpretation.

Clause 8(5) appears to make the exercise by the House of its disciplinary powers a matter of statute, since it seems to confer on the House a statutory permission to exercise those powers in the circumstances provided for in the subsection. If the circumstances in which the House may exercise disciplinary powers became a question of law, it would then be open to challenge before the courts. There are a number of examples that I could provide here, but I am aware of the guillotine on our proceedings and I would not wish to delay the Committee in its consideration of my amendments and others. It could be argued, however, that it is only the “failure” under clause 8(4) and no other, that may be punishable by the House. That would be a question requiring determination by the courts.

Clause 8(6) requires IPSA to prepare a protocol on how IPSA, the Commissioner, the House of Commons Committee on Standards and Privileges, the Director of Public Prosecutions, the Commissioner of Police of the Metropolis, and any other person whom IPSA considers appropriate, are going to work with each other. Given the various examples of the intervention of the police in our precincts and their involvement in politics over the last few years, I am not entirely sure that the Commissioner of Police of the Metropolis will be very enthusiastic about embracing that concept. I would not imagine, or dare to suppose, what the Director of Public Prosecutions would say to that, either. It is not clear to me whether this is meant to impose any obligation on any of the parties to observe the protocol. Again, this will be a question of law to be determined by the courts. If it imposes an obligation—and there seems little point in having such a protocol unless it does impose some sort of obligation—it raises the question of whether IPSA should be entitled to bind a Committee of the House as to how it is to conduct its own work. An analogous issue arises for the DPP in the exercise of his discretions as to whether proceedings should be fettered.

I believe that there are dangers in this enforcement clause. It could lead to litigation, or constrain the House in the use of other sanctions that might be
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regarded as disciplinary. The issue of a formal reprimand and a formal requirement for an apology are within the powers of the House, but are not covered. The clause might also prevent the House from adopting other sanctions required by certain circumstances. The hon. and learned Member for Beaconsfield mentioned some of the sanctions currently available to the Committee on Standards and Privileges: for example, the ability to ban a Member from the use of certain facilities of the House.

I intend my amendments to help the House to preserve its privileges and to avoid a determination of those privileges by the courts.

Mr. Llwyd: When I speak about privilege, I do not do so as a member of any kind of club. It is the privilege of the people whom I represent that I am defending today, rather than anything to do with me personally or with any other Member. Similarly, when we talk about sovereignty we are talking about the sovereignty of the people, and we should hold that sacrosanct as well.

3.30 pm

In evidence submitted in a memorandum yesterday, Professor Dawn Oliver of University college London said:

Viewing the reality of the situation, however, she went on to say:

On clause 8, she said:

Members might consider that a rather iconoclastic and Luddite response to the Bill, but it comes from a professor of constitutional law who knows a thing or two about the field that we are discussing.

In the interests of brevity I shall concentrate on amendment 32, which I regard as a very elegant way of achieving what the learned professor wanted. I think that we are trading on extremely dangerous ground. We are driving a coach and horses through the constitution of this place. I do not say that through any love of this place. The hon. Member for Nottingham, North (Mr. Allen) made some very good points, and I want to align my position with his.

Mr. Edward Leigh (Gainsborough) (Con): The hon. Gentleman has put his finger on what concerns me. At present we have a rule called parliamentary privilege, to which there are certain exceptions. We are in danger of
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moving slowly towards a rule—the supremacy of the courts—with certain exceptions based on parliamentary privilege. There is a very strong difference between those two concepts.

Mr. Llwyd: That is absolutely true. If we meddle with parliamentary privilege we shall start a torrent of litigation, and, more to the point, we shall find that we are unable to do the work that we should be doing on behalf of our constituents.

As I said yesterday, and as Members know, we sometimes hide behind the cloak of privilege. We do it rarely, but we do it to good purpose when an overbearing person or company treads on an innocent constituent who is unable to fight back. We can often redress the balance in this place, but we shall soon find that we are unable to do that if our deliberations become subject to the law of the land. If that power were abused I would say, “Fine, let’s get rid of it,” but it is not abused. It is an essential tool for us as parliamentarians, and we should not allow anyone to start chipping away at it.

Amendment 32 deals with the issue sensibly. It preserves the role of the Committee on Standards and Privileges. Although I speak as a member of that Committee, I think that it has done a good job. I echo what was said earlier by its Chairman, the right hon. Member for North-West Hampshire (Sir George Young). I hope that if the amendment is pressed to a Division, Members will see fit to support it, in the best interests of this place and, more importantly, in those of their constituents.

Sir Robert Smith: I shall speak briefly, because we must try to reach clause 10 somehow, although I fear that in view of the way in which this debate is proceeding, we shall not manage to do so.

All the speeches so far have been extremely important, and have focused effectively on the issues at stake. The message to the Government is that we should have been allowed more time to scrutinise the legislation properly, and the message to the other place is that it will have to work very hard to ensure that we do not let slip anything that we should not have let slip. As has been said, when we talk about protecting privilege we are talking about the privilege of our constituents. It is extremely important to remember that.

As the hon. Member for Foyle (Mark Durkan) reminded us, we must acknowledge the context of the wider debate: the fact that we need to rejuvenate by introducing the external handling of allowances, expenses and finances. We should not go too far too quickly, however, and do other damage to the way in which this House works. In the long run, we do need major reforms: constitutional reform, such as a proper written constitution, and other ways to tackle issues that come before the House. That is not going to happen in Committee today, however. Therefore, I urge the House to support amendment 32 and to take on board the wise words of the right hon. Member for North-West Hampshire (Sir George Young) about protecting the role of his Committee.

I urge Members to make sure that the Bill remains focused on the key political imperative of addressing the aspects of this House that the public have concerns about. It should not go wider than that at this stage. We should look at other issues in more measured times; thereby we can ensure that we do not do any more damage that could undermine the workings of the House. If we were to do such damage, undoing it
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would be almost impossible. It is therefore very important that the Bill remain narrow in focus—and that is even more important given this short debate, and the lack of time.

Mr. Heathcoat-Amory: Hon. Members in all parts of the House are making valiant attempts to improve this part of the Bill. I support most of the amendments, but this is essentially a fruitless exercise because we are trying to improve a Bill that is irretrievably broken. The debate we have had on this clause highlights that; it shows the problems caused when an attempt to fix the allowances system becomes, during the course of the Bill’s passage, an attempt to reform large chunks of the British constitution. If that was the aim, it should have been admitted right at the start, and the attempt to achieve it should have been approached with due humility and after a good deal of deliberation. Instead, we are now stumbling around the constitution, touching on very delicate matters of immunities, rights and privileges. If such reforms are necessary, they should be the subject of an entirely different piece of legislation.

What we are doing in this Bill is setting up new bodies and creating new appointments with new powers and responsibilities, but the relationships between them all are very unclear. They overlap, and they conflict in a number of important respects. That is very well illustrated by subsection (6), under which this entire matter is to be postponed to a “protocol” to be drawn up by one of the new bodies—the super-quango itself, IPSA—to try to find a way of ordering the relationships between the bodies, both old and new. If the protocol is to be effective, it will have to be an extraordinarily long document.

I do not know who in IPSA will do this work, as I do not know what the staffing arrangements will be, but they are going to have to try to order the relationship between the police and this House, for instance. We all know that that is a very difficult matter and we glimpsed that in the police raid on an hon. Member’s office. One aspect of that was that a computer that was seized probably contained material that touched on matters of the House and proceedings in the House; it certainly contained files that held material relating to other hon. Members. Wisely, the police did not proceed with that prosecution, but that matter of privilege was said to be the subject of an extensive document—which I have not seen yet. That is just one tiny example of the problems under an unwritten constitution of ordering the relationships between the external enforcement authorities—the police—and this House and its Committees. So if we are to codify the entire relationship, not only the one between the House and the police, but the one between the Director of Public Prosecutions and other persons unknown, and the relationships involving IPSA and the commissioner, that will require a real volume in itself and it is all unnecessary.

The dangerous part is that the protocol will, by definition, restrict this House. If it were not to do so, it would be a completely pointless document. There is no point having a protocol that does not do something, because it, thus, merely becomes a declaration. It becomes a bit of a new Labour totemic label: something that is desirable but has no effect. If something is in an Act of Parliament, it is designed to bind and to impose obligations,
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and one of the bodies on which this Bill will impose obligations is the Standards and Privileges Committee. It is wrong that that should be done in a protocol drawn up by an external body. If the Bill is intended to bind this House in this way, that should be openly admitted by those on the Treasury Bench. Of course, our Committees work to rules in Standing Orders, but this Bill means that they will obtain instructions in a protocol drawn up by other people. If that is intended, it should be admitted. If it is not intended, it should be withdrawn.

Mr. Walker: Over the past 17 years, whenever there has been a crisis of confidence in this country, Parliament has created a quango. We are now reaping what we have sown because we are creating a super-quango to regulate ourselves, and that is a retrograde and extremely worrying step. I say to the hon. Member for Foyle (Mark Durkan) that of course the public are concerned when we seem to get on our high horse about sovereignty—

Mr. Straw: The hon. Gentleman says that this body will be a super-quango. He may wish to describe it pejoratively as such, but may I remind him that on 10 June his own party leader actively supported its establishment?

Mr. Walker: The Secretary of State makes my argument beautifully. This is a House matter, and I am raising my concerns as a Member of Parliament who is defending the sovereignty that goes with being an MP and that belongs to my constituents. I do not think that the British public really despise us because of our expenses—that situation is a manifestation of their frustrations; they despise us because we have become supine lickspittles, who are more concerned with sucking up to the Executive than with representing the public’s views in this place. We are in grave danger of handing—

The First Deputy Chairman: Order. I wonder whether the hon. Gentleman is going to continue with his remarks in relation to amendment 32.

Mr. Walker: I just wish to support my Front-Bench colleagues in introducing their amendment. This is a very imperfect Bill—it is an appalling one—but at least they are trying to make it a little better and a little more tolerable.

The Parliamentary Secretary, Office of the Leader of the House of Commons (Barbara Keeley): The 17 amendments in this group make it the largest that we will discuss today, so I hope that hon. Members will bear with me as I go through them. First, I wish to touch on a matter that a great number of the people who have contributed to this lively debate have discussed: privilege and concern for their constituents. There is a danger—some of the later contributions started to approach this—that that view could become self-serving, and we must be careful to avoid that. A number of the contributions reflected the fact that we must keep reminding ourselves that we are in the middle of a recessionary downturn and that what people are worried about is not the issues that some hon. Members have raised. What people are worried about is their jobs and their homes. In the middle of all that, we have faced a scandal with which we have to deal. That is the key matter.

Mr. Garnier: I hope that the hon. Lady is not going to allow herself to be misled by the ancient word “privilege”, which is a confusing one. I appreciate that those who do
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not think about it might find it difficult to understand its meaning. Perhaps we should use terms such as “trusteeship” or “duty”—words that are more widely understood. However, for shorthand purposes—thanks to the Government’s guillotine we have to speak in shorthand—the word “privilege” is the one that we will use and understand in this Chamber. That may require us to explain the term to those outside, but that should not allow her to misbehave in introducing her remarks by traducing those who have spoken not only passionately, but very seriously about the questions relating to the privileges of this House.

3.45 pm

Barbara Keeley: I am not doing that: I am just seeking to remind hon. Members of the context in which we are operating. It is easy, when we get absorbed in a three-day debate, to forget the context outside the House.

Mr. Carmichael: May I refer the Minister to the words of Lord Bingham when he gave evidence to the Joint Committee on parliamentary privilege in 1998? He said:

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