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I have no difficulty with that offence, but I have to say that it sends a very strange message about how we view the criminal law to create an offence specifically for ourselves, and which I assume will therefore be used on Members who transgress in this way, when there already exist in the criminal law at least two, and probably more, offences which relate to exactly the same activity and would attract maximum sentences of seven and 10 years. How can I go back to my constituents and say that the
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House is taking them seriously when the offence that we have created for ourselves appears to be a much lesser one than that under the general criminal law? I would have thought that the Secretary of State for Justice, with his knowledge of the criminal law, would acknowledge that it is much better that this House should be subject to exactly the same criminal law as would be visited on anybody else who behaved in this way by obtaining their allowances fraudulently.

There are already two such offences on the statute book: the offence in section 17 of the Theft Act 1968, which is about false accounting and carries a sentence of seven years; and the offence in the Fraud Act 2006, which attracts 10 years’ imprisonment. Both fulfil exactly the same criteria as the offence in clause 9(1). The Secretary of State has told me informally—I am sure he will not mind my telling the Committee—that there are differences. Well, there are some minor differences in wording, but as regards what has to be proved against the individual concerned—namely, the provision of information in the knowledge that that information is false or misleading, which implies dishonesty on the part of the person concerned—I cannot see any distinction, in terms of ease of conviction or otherwise, between the more general offences and this offence.

Mr. Garnier: Does my hon. and learned Friend share my surprise at the intervention by the Secretary of State on Second Reading, when he chided me for misconstruing clause 9, which I said, on any view, imputes a test of dishonesty? He said it did not and that was one of the distinctions between it and the Fraud Act 2006. I do not think that he had in mind section 17 of the Theft Act 1968, albeit I am sure that he is a highly experienced criminal practitioner. Does my hon. and learned Friend agree that clause 9(1), if it does nothing else, at least imputes a test of dishonesty?

Mr. Grieve: I agree entirely with my hon. and learned Friend. Indeed, although I know we are supposed to be in a process of general atonement for our misdeeds, if the Government had suggested to me that we ought to have a criminal offence that did not involve a test of dishonesty, I would have suggested to the Secretary of State that prison capacity would have had to be considerably expanded. It is quite clear, as I think the Secretary of State has acknowledged, that MPs can make mistakes, like everybody else. The test of dishonesty is clearly fundamental to the offence.

4.30 pm

As we are having this debate, will the Secretary of State provide the House with some persuasive arguments as to why we should concoct a specific offence for us, identical to other offences that affect the general public, but visited with a sentence that could be one tenth of the maximum duration that someone might get elsewhere? What sort of message does that send?

The second offence in clause 9 is committed if

I do not believe that either that offence or the previous one has any bearing whatever on parliamentary independence, so if the Government wish to have them, they can. In respect of the offence in clause 9(2), however, the Secretary of State needs to provide some explanation of how the reasonable excuse provisions will work in practice.

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Members of Parliament have known for a long time how easy it is to fail to comply with requirements included in Members’ financial interests rules, and how that can be done innocently. I wonder whether we are using a sledgehammer to crack a nut. This is a straightforward regulatory offence that we seem in the past to have succeeded in dealing with quite satisfactorily through the sanctions imposed in this House. It is odd that, because the new offence can be visited with only a fine as its penalty, if a conviction were obtained it would not disqualify a Member from serving in this place. I simply ask whether the offence is strictly necessary.

Sir Alan Beith: The hon. and learned Gentleman must read clause 9 in conjunction with clause 10, one of the consequences of which is that if a Member said in a debate, as the right hon. Member for Birkenhead (Mr. Field) did openly yesterday, “I do not approve of this legislation, I do not see how it can work and I will probably be subject to an offence under it. If I am, I will not pay the fine and I will go prison,” those words could be adduced in court proceedings. Prosecuting counsel could say, “You say that this was an accidental mistake, but in fact your own words, as reported in Hansard, incriminate you.”

Mr. Grieve: Yes, the right hon. Gentleman makes a good point, which features in the comments of the Speaker’s Counsel, at page 13 of the evidence that he gave to the right hon. Gentleman’s Committee, the Select Committee on Justice. I agree that that could give rise to serious difficulties. Whether it touches on the core areas of the House’s privilege is an open question, but the Secretary of State will have to answer that point.

Speaking personally, I do not feel comfortable with the offence under clause 9(2). Apart from anything else, I think it is unnecessary. I am mindful of the fact that the Secretary of State keeps telling the House that we have fallen so low in the public’s estimation that unless we make a few rods for own back and go out for some public flagellation, we will never restore their trust. I understand that point, but it is important also that we do not make fools of ourselves. If the problem that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) identifies were to come to pass, it would have a chilling effect on how MPs express themselves here.

Mr. Dismore: Is not the position compounded by the fact that we effectively have no de minimis rule in relation to outside earnings? The advice that we have had in the Standards and Privileges Committee from the registrar is that if somebody makes a speech and gets a bunch of flowers, they should register it. If they do not, they are potentially in jeopardy. Is it really right that somebody should face a criminal sanction for failing to declare a bunch of flowers?

Mr. Grieve: The hon. Gentleman is right. I intended to discuss that when considering the third offence, which relates to paid advocacy. As I am sure he appreciates, there is some overlap.

From my reading of the Bill and from evidence given to the Select Committee, I have absolutely no doubt that the offence of prohibited paid advocacy takes us back into the heartland of the House’s independence. It is all the more bizarre because, to include the offence in subsection (3), we must drive a small coach and horses through part of article IX of the Bill of Rights.

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A bribery Bill is currently out to scrutiny. In view of the House’s current rules, I do not understand how it is possible to commit the offence in subsection (3) without committing an offence of bribery. The Government offered to consult in great detail—in fairness, they are doing that—about how a bribery charge can properly be brought against a Member of Parliament, while not removing the protection of the Bill of Rights for speeches in the House. We have indicated our intention to support that because bribery is a serious offence. What, in those circumstances, is the point of the offence in subsection (3)? If we have only one opportunity to vote, the offence in subsection (3) is perhaps the most important for us to consider. However, I fully accept that the offence for which subsection (2) provides is also important because it could also cause hon. Members difficulties.

I agree with the hon. Member for Hendon (Mr. Dismore) who said, as I did yesterday, that we cannot consider the Bill without taking into account the infamous regulations, which the House has produced for itself. We acknowledged in the regulations that the boundary between a gift and a benefit in kind is unclear. If a Member of Parliament attends a dinner given by an organisation—the views of which he supports and for which he is promoting legislation in the House—speaks at the function and does not pay for his dinner, as almost always happens when hon. Members attend such events, he will be in serious difficulty. He will find it difficult to know what to put in the register and whether, thereafter, he is engaging in paid advocacy.

It will be completely unsatisfactory if, with 20 minutes to go before we get to Report, and the Bill set to leave the House at 7 o’clock this evening, potentially never to return, we do not clear up the problems, given the sword of Damocles that the measure hangs over every hon. Member. My amendments are designed to try to tackle the problems and stimulate debate. Some are probing, but the subject needs to be examined in its entirety. I remain unconvinced.

David Howarth: I am sure that the Government will say, in answer to the point made by the hon. Member for Hendon (Mr. Dismore), that the prosecution has discretion and that trivial prosecutions will not be brought. However, there is a fundamental problem with that because the prosecution service is superintended by the Attorney-General—a Minister. The Government promised to remove that problem by introducing a constitutional renewal Bill, but they have so far failed to do that. We are doing things in the wrong order.

Mr. Grieve: The hon. Gentleman makes an interesting point. There are systems in place for ensuring that the Attorney-General is not involved in prosecutorial decisions about Members of Parliament. After all, Members of Parliament have been prosecuted in the past for other matters. We can therefore overcome that problem.

However, while trying to be reasonable and respect the Secretary of State’s point about showing that we take public anger seriously, we have to ask what clause 9 adds to the system of punishment that might be meted out under existing law for things that we do wrong. Subsection (3) and, to a lesser extent, subsection (2)—relating to the two new offences—raise serious and
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complex issues about how the House goes about its business and whether we can continue to enjoy article IX protection for what we say in the Chamber.

Mr. Mark Field (Cities of London and Westminster) (Con): I entirely agree with my hon. and learned Friend about clause 9. However, despite the recent furore, particularly in relation to phantom mortgages, the general public will see that not a single charge has been laid against any Member in relation to either the Theft Act 1968 or the Fraud Act 2006. They may conclude that we therefore need new offences. Will my hon. and learned Friend turn his mind to the rather terrifying prospect that the Government are quite deliberately bringing forward clause 9 in order to place Members of Parliament under a different set of values from that which should apply to the public at large?

Mr. Grieve: I do not think that anything in the Bill will make prosecutions more speedy; indeed, it will make no difference. Prosecutions may arise out of the events that have taken place in the past two months. All that can take place under the existing law.

As I have said to the Secretary of State, we seem to have had a remarkable capacity in the past 10 years to increase criminality in this country by creating new laws that are duplicatory. My reading of the Government’s proposals is that although they vary in their mischief, they are, to all intents and purposes, unnecessary. However, if there is one that the Secretary of State feels particularly passionately about, and if it happens to be clause 9(1), then, although I feel slightly embarrassed about this, because I cannot for the life of me see why there should be a special regime for MPs, I do not think that it will cause any wider harm to the independence of this House. However, the other two subsections raise important issues that the House must consider.

Mr. Garnier: I hesitate to disagree with my hon. and learned Friend, but clause 9 is appalling and unnecessary. Just as there is no such thing as a half-pregnant person, so clause 9 is a bad piece of drafting and it is unnecessary. We should have the courage to say so and make clear our views. I trust that the reasonable approach that my hon. and learned Friend has taken would not allow him to reach a false conclusion.

Mr. Grieve: I hope that I am not reaching a false conclusion. I hope that I have highlighted, as best I can, those aspects of the proposals that, in my view, are either silly or have a sinister consequence for the House, which it must consider. Broadly speaking, I think clause 9(1) is a bit silly—that is my reaction to it—but the other two subsections are much more serious. That is a distinction that can properly be made.

Mr. Straw: Given the time, I will be as fast as I can.

First, the hon. and learned Member for Beaconsfield (Mr. Grieve) asked why we were having specific offences when—he says—someone could be charged for any of the three proposed offences under general law. There is nothing unusual about having general provisions with specific parallels for specific purposes; I have plenty of examples, including what is now section 2 of the Fraud Act 2006 and section 17 of the Theft Act 1968, which apply generally to members of the public. The Local Government and Housing Act 1989 and the Social Security Administration Act 1992—not our legislation,
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but the Conservatives’ legislation—have specific offences for knowingly making a false declaration. Why did the previous Conservative Administration—in my view correctly—make those offences? It is because in practice it is sometimes easier to prosecute. One can have a jurisprudential argument about the difference between “falsely”, which involves a clear level of knowledge, and “dishonestly”, but there is a difference between those offences for which, in practice, it is on the whole easier to prosecute and gain a conviction, and the wider Fraud Act and Theft Act provisions.

Mr. Grieve: Will the Justice Secretary give way?

Mr. Straw: Just a second, if I may.

As for subsection (2), the second limb of clause 9, this House has to my almost certain knowledge—with, if not the support, then certainly the acquiescence of the Opposition—supported the insertion of provisions concerning the registration of financial interests into the Scotland Act 1998, the Government of Wales Act 1998, the Local Government Act 1972, which is a Conservative Act, and the Local Government and Housing Act 1989, as well as other provisions. As I said to the Committee earlier, what is sauce for the goose needs to be sauce for the gander. The same is true in respect of paid advocacy, with the exception that those offences are rather less onerous than those that the House has imposed on Members of other Administrations.

The hon. and learned Gentleman, who usually makes good points, made a rather poor point by saying that this clause can apply only to Members of Parliament. Well, the offences that we have imposed on the Scottish Parliament can apply only to Members of the Scottish Parliament and the ones that they imposed on local councils can apply only to local councillors. The hon. Member for Cities of London and Westminster (Mr. Field) suggested with a slight smile on his face that there was some deep dark motive behind the provision, but there is not at all.

4.45 pm

As to the point that the hon. and learned Member for Beaconsfield made about the current code and what I accept are ambiguities in it, these offences would apply only to the new provisions, which would come into force under clause 5, and they would have to be subject to a clear decision by this House and would certainly have to be more clearly defined than the existing provisions.

Mr. Cash: Will the right hon. Gentleman give way?

Mr. Straw: I promised that I would give way to the hon. and learned Member for Beaconsfield, and I want to put a final point to him. Without putting words into anyone’s mouth and to put it delicately, the hon. and learned Gentleman seems to accept that there was a general acceptance in the all-party talks that some specific offences needed to be in the Bill. There may not have been votes on it, but there was general acceptance of that. He accepts that for each instance there should be an offence but that they should be offences at large. Clause 9(3) deals with cash for questions, which is a rather serious issue. He says that bribery could be charged, which is possible in very serious circumstances; if it is very serious, there is no particular reason why it
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should not be charged as an alternative offence. I have argued that it is the practice of this House, with different parties in control, to have narrower offences for specific circumstances.

On clause 10, the hon. and learned Gentleman is right to say that we have been discussing the modification of article IX of the Bill of Rights 1689, so that Members of Parliament can be prosecuted if alleged to be guilty of bribery. My proposal on clause 10 is to accept the amendment in the name of the right hon. Member for North-West Hampshire (Sir George Young), which would broadly bring into line the third limb of the clause relating to proceedings in Parliament with what has already been widely accepted across the House for the bribery provisions.

Mr. Cash rose—

Mr. Grieve rose—

Mr. Straw: I give way first to the hon. and learned Member for Beaconsfield and then to the hon. Member for Stone (Mr. Cash).

Mr. Grieve: If the Secretary of State looks back at the Scotland Bill, he will find—my memory goes back that far—that I was very concerned about ensuring that the Scottish Parliament had proper sovereignty. I remember expressing concerns about the criminal offences, as I raised the question of whether they should be left to the internal regulation of that institution. That is my first point. My second is that the Fraud Act 2006 was not in existence then and it commanded widespread support in the House for simplifying the fraud law. I have here the particulars of an offence relating to the charge of fraud, which could be that a person between a day and another day dishonestly and intending to make a gain for himself failed to disclose to IPSA what he was under a legal duty to disclose—he was double-claiming an allowance. That is all one has to prove. In those circumstances, I am afraid that I simply cannot accept the Secretary of State’s contention that the new offence under subsection (1) will be easier to prove.

Mr. Straw: The hon. and learned Gentleman makes a lawyer’s point about section 2 of the Fraud Act 2006 not being around at that stage, but he knows very well that section 16 of the Theft Act 1968 was.

Mr. Cash: The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) raised a question earlier about the connection between clause 9 and clause 10 and asked whether clause 10 would impede the body created from taking appropriate action against a Member. The Clerk said no, it would not, and that was reinforced by the Speaker’s Counsel, so on what basis does the Justice Secretary take the view that they were wrong?

Mr. Straw: I do not take the view that they were wrong, but there is self-evidently a difference of emphasis on whether they are right, and we are trying to resolve that.

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