The Operation of the Parliamentary Standards Act 2009

Written evidence from the Clerk of the House

1. This note is in response to a request for my views on the operation of the Parliamentary Standards Act 2009 from the Committee on Members’ Expenses.

2. As I am sure the Committee will understand, and as I made clear in my evidence to the Justice Select Committee on the Parliamentary Standards Bill at the time, my concern was with the constitutional implications for parliamentary privilege of provisions of the Bill; I was not commenting on the merits of the Bill’s policy proposals, in particular with the merits of setting up an independent authority to handle the provision of the salaries and allowances of Members of the House of Commons.

3. The provisions of the Bill, introduced on 23 June 2009, which most disturbed me were in Clause 6 (MPs’ Code of Conduct), Clause 8 (Enforcement) and Clause 10 (Proceedings in Parliament). I also commented on other aspects of the Bill, though these were less egregious examples of potential difficulty in respect of parliamentary privilege. The crux of my concern was that these provisions seriously infringed parliamentary privilege by bringing all the matters covered in them into the ambit of the courts, thus sending a torpedo through Article IX of the Bill of Rights which protects parliamentary proceedings from being questioned in the courts.

4. In the event, the Government withdrew Clause 6 (which would have made the Members’ Code of Conduct justiciable) and that took out of the Bill a particularly threatening provision in respect of privilege, since it would have made the whole code a matter for potential litigation in the courts.

5. Clause 8 (Enforcement) – which would have provided, in its original form, a wide power of direction to Members of the House by IPSA – was watered down and was incorporated into Section 9 of the Parliamentary Standards Act 2009 whereby the Commissioner for Parliamentary Investigations established by the Act would be able to conduct investigations into overpayment but would need to report breaches of the financial code to the Committee on Standards and Privileges. The Act itself has since been amended by the Constitutional Reform and Governance Act of 2010, replacing the Commissioner with a Compliance Officer. Under the new provisions, while IPSA determines the procedures to be followed by the Compliance Officer, they must be "fair" and IPSA must consult, among others, the Committee on Standards and Privileges. In addition, the Act requires IPSA and the Compliance Officer to prepare a joint statement setting out how they will work with the Parliamentary Commissioner for Standards, among others. I understand that the Parliamentary Commissioner for Standards and the Committee on Standards and Privileges have recently agreed a statement governing mutual relations with IPSA, which should ensure that issues of cognizance and privilege will no longer arise. You may still wish to explore the efficacy of that arrangement by taking evidence from those individuals and bodies.

6. I am not sure that the question of double jeopardy affecting Members (i.e. from action by the House and by the Courts) which I also raised has been entirely addressed although the recent practice of the House in respect of criminal prosecution, is to refrain from disciplinary action while criminal process is "live" but questions about subsequent treatment of Members may still arise.

7. So far as Clause 10 was concerned (which gave IPSA wide powers to carry out its functions despite the provisions of Article IX of the Bill of Rights) the Question on the Clause stand part was defeated by 250 to 247. A serious erosion of privilege was thus averted.

8. In summary therefore, I should say that I believe the principal provisions which most worried me in the original Bill were not enacted, in the case of Clause 10 only as the result of a Government defeat. While the passage of the Bill illustrated the importance of detailed scrutiny in Committee of the whole House, it also serves as a warning against the hasty introduction of statutory provisions affecting parliamentary privilege. The fact that the present Government plans to introduce a draft privileges bill, which will provide the opportunity for full and careful consideration, seems to indicate that the lesson has been learnt.

9. On the second matter mentioned in your letter – of the inter-action of IPSA and Members – I do not think it is for me as Clerk of the House to comment except to say that it is essential that any system of expenses meets the needs of Members of Parliament in performing their duties efficiently and effectively and without being put under any disproportionate burden of bureaucratic regulation.

Malcolm Jack

Clerk of the House of Commons

23 September 2011