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“The term ‘privilege’ is, I think, plainly unfortunate, although hallowed by long usage. It wrongly suggests some perk or special right or dignity, which certain office-holders enjoy, when attention should be concentrated on the limited exemption from the ordinary law which the effective performance of a public duty requires.”
That is what we are talking about. Does the Minister agree that we throw that away at our peril?
Barbara Keeley: Indeed I do, but I do not think that the sensible measures in this Bill would do that.
Sir Robert Smith: The Deputy Leader of the House dismisses the comments of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) with one line, but she earlier prayed in aid the fact that we are in a recession with which the Government do not seem to have been coping. A recession should not be an excuse for failing to take seriously the constitutional position of this House.
Barbara Keeley: I agree, and I hope that I have not given that impression.
Amendments 32, 33 and 36 would remove the power of the new body—IPSA—to make recommendations to the House about possible disciplinary sanctions and the provision that the recommendations might be published. The hon. Member for Foyle (Mark Durkan) made the point that we cannot have a dual control system. This is not a driving lesson: we need to change the system and we cannot have dual control.
As my right hon. Friend the Justice Secretary mentioned, we have all agreed that we need to set up an outside body to take over the running of our allowances and the financial rules. We cannot continue to be wholly self-regulating in such matters. The approach that we have adopted is to provide for IPSA to recommend—or, in some cases, direct—action, but to leave it to the House to enforce it. That is the key point, and that approach best treads the path between responding to the real public anger on this issue and respecting the position of the House.
There has been reference to the work of the Standards and Privileges Committee, and we have to weigh the excellent work that it has done in most cases with the
very real public discontent with our processes. It would not meet our objectives of transparency and independence if all IPSA could do were to make a report to the Committee. One of the key messages that we have to take from the public anger about these matters in recent months is that the old way of dealing with them is no longer judged to be adequate. We are not overriding procedures that the public perceive as working well and we cannot return to a system that is entirely managed within the House.
The proposals in the Bill would give the House as large a continuing role as is compatible with meeting the concerns of our constituents that we must be seen to be subject to proper regulation and supervision.
Mr. Cash: Does the Minister think that the public might be extremely angered by the idea that they as electors should see such decisions taken by the courts rather than by those whom they have elected? That is a fundamental question of democracy. I suggest that an opinion poll would be guaranteed to show that at least 85 per cent. of the electorate would prefer to continue with their democracy, not hand it over to judicial supremacy.
Barbara Keeley: The point that I keep asserting is that we need to be clear about the public confidence, and the public do not have confidence in some of the processes that we have been talking about.
I want now to turn to amendment 17.
Barbara Keeley: I shall give way, but time is very limited and I have a large group of 17 amendments to work through.
Mr. Redwood: Can the Minister not understand that the public were unhappy about the generosity of the scheme and the lax administration in some cases, not about the enforcement of cases against Members who had misbehaved? She is tackling the latter, not the former. How does that make any difference to the issue that annoyed the public?
Barbara Keeley: I am going to have to start repeating myself, Mrs. Heal, if people keep asking me the same questions.
Let me turn to amendment 17, which was tabled by my hon. Friend the Member for Middlesbrough (Sir Stuart Bell). I understood the concern expressed in this amendment that, as the clause is drafted, it might make a decision of how to respond to a recommendation justiciable, or at least that the Standards and Privileges Committee would be obliged to act on a recommendation in some circumstances. The key point is that nothing in the Bill takes away the inherent powers of the House to discipline its Members as it thinks fit. In fact, there is a provision that makes it clear that nothing in the Bill prevents the House from exercising its disciplinary functions other than following an IPSA process. IPSA has the power only to recommend, not to enforce its recommendations, so it is quite clear from the Bill that the Committee and the House have a free hand to do with the recommendation what they think fit.
Mr. Grieve:
That simply cannot be right. If the Minister has bothered to read the report from the Justice Committee and the opinions of experts, she will know that the decisions will become justiciable because they have been
incorporated in statute. We cannot get away from that—it cannot be magicked away—and so far, I have to say, she has said nothing about that.
Barbara Keeley: To return to amendment 17, I understand that the Members who tabled it might be prepared not to press it to a Division because of the key point that I have just made. The amendment carries the risk of fettering the Committee’s discretion.
Mr. Leigh: Will the hon. Lady give way?
Barbara Keeley: I need to make a little progress.
Let me turn to amendments 65 and 66, which were tabled by the hon. Member for North Essex (Mr. Jenkin). I understand that amendment 65 concerns fears about how the courts will react to a new regulatory scheme. In particular, there is a concern that the Standards and Privileges Committee could be subject to judicial review for failing to follow a recommendation. The Bill does not repeal article IX of the Bill of Rights—nor does it disapply it. In the absence of an explicit provision or necessary implication, a court will continue to read article IX as applying. There is clearly no necessary implication in these provisions that article IX should be taken to be amended in any way. That would mean that it is more likely that a court will consider that any proceedings of the Standards and Privileges Committee would remain within the protection of article IX.
Mr. Jenkin: The Bill contains other clauses, which have been put in for clarification, such as that which makes it clear that the House can continue to use its disciplinary procedures unfettered by IPSA. Why not have a clarification in the Bill of exactly what the hon. Lady has just said that she believes that the Bill will do? A great many people, including the learned Clerk of this House, do not agree with her.
Barbara Keeley: We have to be in a situation of clarity—[Hon. Members: “Absolutely.”] Okay, well, we can try to move to that.
Let me move on to amendment 66. A number of amendments tabled by right hon. and hon. Members concerned the protocol in clause 8, which was actually meant to be helpful. The Justice Secretary and I have been surprised at the extent to which difficulties have been expressed about that, and we are prepared to take it away and to consider it. I wonder whether the hon. Member for North Essex might be prepared to withdraw amendment 66, as it links in with matters of the protocol that we will be considering.
David Howarth: Will the hon. Lady clarify whether the Government’s intention is for the protocol to create obligations on the people on the list in clause 8? If that is not the Government’s intention, a lot of the problems will fade away when they come to reconsider the matter.
Barbara Keeley: No, it was not the intention to create binding obligations. The provision was expressly limited to a statement about the way in which the bodies would work together. It was meant to be helpful. It will not create binding obligations, but it is clear that Members have concerns about it. A number of amendments in this large group relate to the proposal, and the Justice Secretary has said that we are prepared to reconsider the matter.
Mr. Grieve: I come back to my point about justiciability, about which the Minister must have a view. I believe that incorporating references such as to the protocol or the role of the Standards and Privileges Committee means that the process must be justiciable henceforth—contrary to the previous position under article IX of the Bill of Rights. The Government must have an opinion on that, but the Minister still has not given it to us.
Barbara Keeley: We have said that we are prepared to have a look at the matter. We are going to have to leave it there.
I have just touched on amendment 66. Amendment 46 is about giving advice to Members, and I hope that the hon. Member for North Essex will accept that we have dealt with that already.
Mr. Leigh: The Minister must realise that this is a matter of acute concern. The Bill of Rights has been there for 300 years. It has protected the liberties of our people and made us the most law-abiding democratic nation in the world. Will she now please reply to the point put carefully to her by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve)? She is replacing the Bill of Rights with a provision that renders matters pertaining to the House justiciable. We must have an answer before we move to a vote.
Barbara Keeley: We do not believe that those matters will be justiciable. Opposition Members have said that they want to reach the later amendments, so we are going to have make progress.
I believe that we dealt with amendment 46 in an earlier debate, and I turn now to amendments 34 and 18. We have deliberately devised a scheme in the Bill so that the House retains the power to discipline its Members. Apart from the criminal offences in clause 9, the ultimate decision about what action to take against an MP remains with the House. It will be for the House to decide whether to punish a Member for not supplying information or for failing to comply with a direction, and it will be for the House to decide what to do with a recommendation from IPSA for other sanctions.
We believe that concerns that the provisions are breaches of privilege are misplaced, because they have been carefully drafted precisely to preserve those privileges of the House. The alternatives would have been to make every breach of the rules on allowances or the registration of interests into a criminal offence, or to give IPSA itself a power to enforce its decisions.
Both options would lead to giving a body outside Parliament far more of an incursion into the proceedings of the House, and would certainly be a breach of the principle of exclusive cognisance. Therefore, I urge the Committee to reject the amendment.
Sir Alan Beith: I think that the Minister is confusing things that involve proceedings in this House and things that do not. The payment of allowances is not a proceeding in this House. It is possible to deal with it through measures that do not impinge on parliamentary privilege. They may give rise to the problem of justiciability, but they do not raise issues of privilege. If the Government recognised that they can deal with pay and allowances without interfering with privilege, they would not have to disapply article IX of the Bill of Rights—as, contrary to what she said earlier, clause 10 does.
Barbara Keeley: There does need to be that independent authority.
Mr. Jenkin: Will the Minister give way?
Barbara Keeley: No, as I am going to work through the rest of the amendments.
Amendment 19 would omit subsection (6) of clause 8. I have said already that that subsection, on protocol, was meant to be helpful. Clearly, Members are not finding it helpful and we have agreed to look at it again to be helpful as the Bill progresses further through the House.
Amendment 20 would substitute the Committee on Standards and Privileges for the Speaker’s Committee on the Independent Parliamentary Standards Authority in the first line of clause 8(6). That is a sensible thing to do, and we are prepared to accept both that amendment and amendment 21.
Amendment 64, which is in the name of the hon. Member for North Essex (Mr. Jenkin), would remove the provision in the Bill that makes it clear that the House’s powers to discipline its Members are not constrained by the Bill. The point of that provision is to confirm that the House continues to have the freedom to discipline its Members in any way that it chooses, and in any circumstances that it considers relevant. For example, the House will continue to have the power to punish breaches of those parts of the code of conduct that are not transferred to the authority of IPSA. That power is not conferred by the Bill. The Bill, of course, does not give the House permission to exercise its powers; the provision is simply a statement of fact, included for the avoidance of doubt.
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Mr. Jenkin: The Minister mentioned the term “exclusive cognisance”. Can she explain to the House what she means by that, and what she understands by that term?
Barbara Keeley: No. I will not lengthen the debate by that method. Given that amendment 64 is about a simple statement of fact that is included in the Bill, for the avoidance of doubt, I urge the hon. Gentleman to withdraw it. Amendment 67 is, again, on a matter that is linked to protocol. We have decided during this debate that there are a number of matters that should be looked at. We can support the principle behind the amendment, and can look to make some drafting changes as the Bill progresses, if that is acceptable to the hon. Gentleman.
On amendment 97, we accept the point made about double jeopardy. We definitely need to get the wording right. If we have not got it right, we need to do so, and I hope that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) will accept the assurance that we will ensure that we get it right. We accept the principle behind amendment 12, and will look at the matter later in the Bill’s passage.
That leaves us with amendment 22. The powers of the House to discipline its Members are inherent in its jurisdiction—a point that I made earlier—so the powers set out in the clauses are all powers that the House already possesses. There is no suggestion that the powers will be limited in any way in future, or that the list of powers is exhaustive. Nor is there any suggestion that the powers are conferred by the Bill. We are trying to
make it clear that we are talking about, and recognising, powers of the House that already exist. Clause 8(10) makes it clear that the range of sanctions that IPSA can recommend include withholding salary, suspension and expulsion. That is a clear indication of the range of sanctions that a Member who has broken the rules might expect to have imposed, including the most serious sanctions.
We feel that it would be unacceptable if IPSA had the power to recommend sanctions when there was no public indication of what they might be. The public, to whom I keep referring, need to know such things. We feel that that approach best treads the path between responding to public anger and respecting the position of the House. Given my comments on those amendments, I commend clause 8 to the House.
Mr. Grieve: If the Bill goes on the statute book and does not get repealed or altered soon, I think that the Minister’s speech in response to the debate will stand as an absolute monument to the way in which the Executive now treat this place. She was unable to answer any of the questions about the maintenance of our independence. The high point of the Government’s position was their telling us that their own analysis was that it was more likely than not that our independence would not be undermined as a result of the proposals in clause 8, yet she was unable to provide any coherent argument on why amendment 32 would not improve the Bill.
As the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) rightly says, let us start moving the process in a direction that provides clarity to the role of IPSA, while protecting our independence in matters that concern the internal discipline of this House and that ultimately touch on the way the House operates. That is the point where justiciability and privilege start to run together. If we could just keep that in mind, the Minister would find there was widespread consensus across the House on the changes that the Government have tried to introduce. Instead, every time we look as though we are about to approach that consensus, we get diverted into a strange, nightmarish regulatory regime that will stand us in endless discredit with the public and undermine our ability to do our job. In those circumstances, I believe that amendment 32 has real benefit, although it is just a small step in the right direction, and I wish to put it to a vote.
Mr. Straw: Let me refute what the hon. and learned Member for Beaconsfield (Mr. Grieve) said in an unusually temperate set of remarks. My hon. Friend the Deputy Leader of the House dealt carefully with each amendment. The hon. and learned Gentleman’s implication was that we have simply sat here and resisted all the amendments, but he knows very well that that is the reverse of the truth. I am not supposed to talk about this but, as the record of the notes going backwards and forwards between Ministers and the official Box will disclose, what I have sought to do with my hon. Friend is listen to the debate. On a number of occasions, I have come to the Chamber with one view, but I have changed it in the light of debate, which is the purpose of parliamentary debate. There is a legitimate argument to be had about amendment 32, but I have to tell the hon. and learned Gentleman and the Committee that the Bill is not remotely about undermining the independence of the House, something for which I have stood—
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