Legislative Scrutiny: Children, Schools and Families Bill; other Bills - Human Rights Joint Committee Contents


Letter to the Chair of the Committee from the Rt Hon Jack Straw MP, Secretary of State for Justice, dated 26 January 2010

CONSTITUTIONAL REFORM AND GOVERNANCE BILL: AMENDMENTS FOR COMMITTEE STAGE TO IMPLEMENT CERTAIN RECOMMENDATIONS OF THE COMMITTEE ON STANDARDS IN PUBLIC LIFE'S REPORT ON MP'S EXPENSES AND ALLOWANCES

  Following the written statement by the Leader of the House on 10 December, I have today tabled Government amendments to the Constitutional Reform and Governance Bill to implement ten of the recommendations of the Kelly report on MP's expenses and allowances. I am satisfied that the provisions are compatible with the Convention rights. The attached memorandum details our assessment of the human rights issues arising from the amendments.

Annex

ECHR MEMORANDUM: AMENDMENTS TO THE CONSTITUTIONAL REFORM AND GOVERNANCE BILL WHICH IMPLEMENT THE REPORT OF THE COMMITTEE ON STANDARDS IN PUBLIC LIFE

  1.  This Memorandum addresses human rights issues arising in relation to provisions which implement the report of the Committee on Standards in Public Life ("CSPL") on MPs' expenses, the committee chaired by Sir Christopher Kelly ("the Kelly report").[31] The provisions are to be inserted into the Constitutional Reform and Governance Bill by amendment ("CRAG").

INTRODUCTION AND BACKGROUND

  2.  Last year, in response to the MPs' expenses scandal, Parliament passed the Parliamentary Standards Act 2009 ("the 2009 Act") to an accelerated timetable. That Act:

    (a) establishes the Independent Parliamentary Standards Authority ("the IPSA") to:

(i)administer MPs' pay;

(ii)prepare and administer an MPs' allowances scheme;

(iii)prepare and administer an MPs' code of conduct relating to financial interests ("the financial code");

    (b) establishes an independent office holder, the Commissioner for Parliamentary Investigations ("the Commissioner"), to investigate breaches of the MPs' allowances scheme and the financial code and refer findings to the House of Commons Committee on Standards and Privileges for the House to decide whether to take disciplinary action;

    (c) establishes the Speaker's Committee for the IPSA, made up of MPs, which agrees selections of members of the IPSA and the Commissioner and has a role in the financial accountability of the IPSA;

    (d) creates an offence for an MP who provides information which that MP knows to be false or misleading for an allowances claim;

    (e) makes provision about the transfer of further functions to the IPSA or Commissioner;

    (f) provides a sunset clause which would result in provisions of the 2009 Act which relate to the Commissioner and financial code expiring (subject to a power to extend) two years after the commencement of the financial code provisions.

  3.  The Kelly report was published on 4 November 2009. It contains 60 recommendations. Many of these recommendations relate to the type of allowances scheme that should be established by the IPSA and which are within the existing powers of the IPSA. However, there are other recommendations which could not be implemented without primary legislation which the provisions, described below, address.

THE PROVISIONS

  4.  The amendments make provision concerning the following:

    (a) Amendments 01 and 16: The independent Commissioner would be replaced by a Compliance Officer appointed by the IPSA through a process of fair and open competition. The powers of the Compliance Officer to investigate complaints would be similar to those presently vested in the Commissioner.

    (b) Amendment 2: The Speaker's Committee on the IPSA would include three lay, voting members drawn from outside Parliament.

    (c) Amendment 3: The general duties of the IPSA are enhanced in several ways, in particular to enhance transparency of the new system. Specifically:

(i)The IPSA would be given a duty to support MPs to carry out their parliamentary duties in an efficient, cost effective and transparent way.

(ii)The IPSA would be required to give reasons for adopting an allowances scheme.

(iii)The IPSA would be required to publish claims for allowances made and allowances paid, with such details as it considers appropriate.

    (d) Amendment 4: The IPSA is given the power to set, as well as to administer, the MPs' pay system, after consulting the Review Body on Senior Salaries and others.

    (e) Amendment 5: A power is provided so that the IPSA is able to give effect to exercises of the disciplinary power of the House of Commons in relation to allowances (including resettlement grant). Under the 2009 Act, this power exists only in relation to salaries (see section 4 of the 2009 Act). This would enable the IPSA, for example, to reduce or remove an allowance payable for future breaches of the House of Commons conduct rules.

    (f) Amendment 7: The provisions of the 2009 Act in relation to the financial code will be repealed.

    (g) Amendment 6, 8 and 17: The Compliance Officer would be given the power to impose sanctions, namely a civil penalty, as well as requiring the restitution of wrongly paid allowances. Repayments, monetary penalties and costs would also be made recoverable through the county court. The Government would provide a route of appeal from decisions of the Compliance Officer to the First-tier Tribunal. The MP or Compliance Officer can appeal from a decision of the First-tier Tribunal to the Upper Tribunal on any point of law with permission, pursuant to section 11 of Tribunals, Courts and Enforcement Act 2007 ("TCEA"). There is then a right of appeal to the Court of Appeal with permission on a point of law pursuant to section 13 of the TCEA. There is also the possibility of an appeal to the Supreme Court.

    (h) Amendment 12: The sunset clause would be repealed.

    (i) Amendment 19: The IPSA is given the power to make a scheme about the administration of the Parliamentary Contributory Pension Fund and to make provision about MPs' pensions in a MPs' pensions scheme. The Minister for the Civil Service is given the power to make a scheme making provision about Ministers' etc pensions in a Ministers' etc pension scheme.

  5.  The amendments would also provide for the possibility of a protocol between the IPSA and the new Compliance Officer and other enforcement bodies, including the non-statutory Parliamentary Commissioner for Standards and prosecuting authorities (see amendment 10). There are also minor and consequential amendments—see amendment 11 (repeal of section 11 of the 2009 Act) and amendments 13 and 18 (consequential amendments).

ECHR ISSUES

  6.  In outline, the key human rights issues in respect of the above amendments are as follows:

    (a) whether the enforcement powers of the Compliance Officer (contained in amendments 6, 8 and 17) give rise to issues under Article 6 ECHR and Article 1 of the First Protocol;

    (b) whether the IPSA's powers to give effect to the exercises of the disciplinary powers of the House in relation to the MPs' allowances scheme and pay (contained in amendment 4 and 5) are compatible with Article 6 and Article 1 of the First Protocol;

    (c) whether the provision (contained in amendment 4) that no payment of salary is to be made before an MP has taken the oath required by the Parliamentary Oaths Act 1866 (or the corresponding affirmation) is compatible with Article 1 of the First Protocol;

    (d) whether the duty on the IPSA to publish such information as it considers appropriate in respect of each claim for an allowance and each payment (contained in draft amendment 3) are compatible with Article 8 ECHR; and

    (e) whether the provisions in relation to the making of pensions schemes (contained in amendment 19) are compatible with Article 1 of the First Protocol.

  7.  We address each of these issues below.

ECHR COMPATIBILITY

 (a)   Compliance Officer and enforcement

  8.  Article 6 provides that where there is a determination of a civil right/obligation, or a criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Importantly, that right: (a) contains certain procedural guarantees concerning the determination of civil rights or obligations; and (b) guarantees a right of access to court for such determinations.

  9.  Article 1 of the First Protocol provides that no one is to be deprived of his or her possessions except in the public interest and subject to conditions provided by law.

  10.  As stated above, the Compliance Officer would be given the power to impose sanctions, namely a civil penalty, as well as requiring the restitution of wrongly paid allowances. Repayments, monetary penalties and costs would also be made recoverable through the county court. These functions may give rise to issues under Article 6 and Article 1 of the First Protocol, which we detail below. The Compliance Officer's investigation powers may give rise to issues under Article 8 which are also discussed below.

Repayment Direction and Enforcement

  11.  The enforcement powers of the Compliance Officer give rise to issues under Article 6 ECHR. This is because the making of a direction to repay overpayments ("a repayment direction") under new Schedule 4 may amount to the determination of a civil right or obligation. Such a repayment direction would require an MP to repay overpayments, interest on those overpayments and costs incurred by the IPSA or Compliance Officer in relation to the overpayment. A repayment direction would require the repayments by a certain time. The main way of enforcing a direction would be to recover the amount against future payments of allowances and salaries. However, they would also be recoverable through the county court.

  12.  Arguably, a repayment direction under the new Schedule 4 does not amount to a determination of a civil right or obligation for Article 6 purposes. This is because there is clear authority to the effect that disciplinary functions in relation to members of Parliament do not engage Article 6 because of the public law nature inherent in being a member of Parliament. For example, the Strasbourg court has held that Article 6 is not engaged in cases where members of Parliament were automatically disqualified after being found bankrupt and removed for exceeding the level of elections expenses (albeit in the latter case after a court finding to that effect).[32] An earlier case decided that there is authority that the right to participate in a legislative chamber (in that particular case the House of Lords) "falls into the sphere of 'public law' rights outside the scope of Article 6."[33]

  13.  The question is how far these authorities apply in the case of what is essentially a repayment, rather than disciplinary scheme. In the context of other obligations to make payments to the state (for example, obligations under tax legislation), the Strasbourg court has held that the fact that a dispute is pecuniary is not sufficient to show that there is a determination of a civil right or obligation. The question is whether the private law features predominate over the public law features.[34]

  14.  In this case, there are arguments that the pecuniary interest involved in making a repayment here is so closely related to each MP's responsibilities as an MP that the interests affected here are public in nature. On the other hand, there are weaknesses with this argument because the features of the allowances scheme are likely to have the features of other expenses schemes in private employment. It may be thought that the pecuniary interest affected is analogous to pecuniary interests affected in a private law context. Nevertheless, there are arguments that the public nature of these matters means that Article 6 is not engaged.

  15.  Even if a court were to find that a repayment direction did determine civil rights or obligations, there are a range of safeguards to ensure that the process behind the repayment direction is compatible with Article 6. In particular:

    (a) The Compliance Officer will be independent and impartial. In particular, the Compliance Officer is appointed by the IPSA on the basis of fair and open competition and is independent of the executive. A person appointed to this position is appointed for a fixed term of five years, after which a person appointed to this role may not be re-appointed. Furthermore, the person appointed can only be removed during the fixed term on very limited grounds, for example because they are declared bankrupt or unfit to carry out the functions of their office. These safeguards ensure that the role of Compliance Officer is independent and impartial for Article 6 purposes.

    (b) A repayment direction will only be made after the investigation process by the Compliance Officer set out in amendment 8. As part of that process, the MP would be given an opportunity to make representations as part of the investigation. The MP would also be given an opportunity to make further representations about the Compliance Officer's provisional findings.

    (c) A decision by the Compliance Officer to impose a repayment direction would be subject to appeal to the First-tier Tribunal. The MP would also be able to appeal against the imposition of interest or costs. That appeal would be by way of a full rehearing. Repayments, interest and costs would not be recoverable until the appeal proceedings were completed. These appeal rights are sufficient to ensure that the provisions are compatible with Article 6 by providing a right of appeal which stands free of any additional right to seek judicial review. This ensures that matters which may involve the determination of a civil right or obligation are decided by an independent and impartial tribunal which has "full jurisdiction" to rehear all issues of law and fact.

    (d) An MP may also apply to the Compliance Officer to extend the period in which a repayment should be made. An MP may also appeal to the First-tier Tribunal in respect of the Compliance Officer's decision not to extend the repayment period.

    (e) The IPSA would be required to set out other procedures in relation to investigations by the Compliance Officer and complaints to the Compliance Officer and set guidance about the imposition of costs as part of a repayment direction. In doing so, the IPSA, a public authority for the purpose of section 6 of the Human Rights Act 1998, would be required to act compatibly with the Convention rights.

    (f) The Compliance Officer will also be a public authority and required to act compatibly with the Convention rights.

  16.  Accordingly, we consider that the provisions relating to repayment directions and their enforcement are compatible with Article 6.

Imposition of a Monetary Penalty

  17.  Part 2 of new Schedule 4 would provide the Compliance Officer with powers to impose a monetary penalty. The Compliance Officer would be able to impose a penalty: (a) where the Compliance Officer has made a finding that an MP has without reasonable excuse failed to comply with a request for information; and (b) where the MP has without reasonable excuse failed to comply with a repayment direction. The penalty is limited to £1,000. As with the repayment direction, the penalty would be recoverable against future payments of pay or allowances, but would also be recoverable through the county court.

  18.  We consider that it is likely that the powers to impose a penalty will engage the civil limb of Article 6 ECHR as being the determination of a civil right or obligation. However, we consider that there are tenable arguments that the monetary penalty regime would not engage the criminal limb of Article 6. The test for whether there is a determination of a criminal charge is whether an act is classified as criminal for the purpose of domestic law; the nature of the offence; and the seriousness of the penalty, Engel v Netherlands (1976) 1 EHRR 647. Here, the penalty is of a civil nature in domestic law and it is imposed for failure to comply with the requirements of the Compliance Officer which are in the nature of sanctions for administrative wrongdoing rather than having the characteristics of criminal misconduct. The penalty is also designed to ensure compliance with the scheme rather than being of a punitive nature. In addition, the penalty is capped at £1,000. There is no direct connection between the circumstances in which a penalty is imposed and the criminal offence provision in section 10 of the 2009 Act (offence of providing false or misleading information for allowances claims).

  19.  The following safeguards are available concerning the imposition of a penalty:

    (a) A penalty will only be imposed after a finding that the MP has failed to provide information to the Compliance Officer or after a failure to comply with a repayment direction. Both circumstances will only arise after there has been an investigation by the Compliance Officer in relation to whether an MP has been overpaid, as set out in substituted section 9. The MP will have the opportunity to make representations during that process.

    (b) The Compliance Officer would be required to provide a penalty notice setting out information about the penalty imposed.

    (c) As with the making of a repayment direction, the MP would have a right of appeal to the First-tier Tribunal against the imposition of a penalty. That appeal would be by way of a full rehearing; the First-tier Tribunal would therefore have "full jurisdiction" to rehear all issues of law and fact. The penalty would not be recoverable while an appeal against the penalty is on foot.

    (d) The IPSA would be required to prepare guidance about the imposition of penalties. In doing so, the IPSA would be required to act compatibly with the Convention rights.

    (e) As noted above, the Compliance Officer will be required to act compatibly with the Convention rights.

    (f) The Compliance Officer would be able to review a decision to impose a penalty and would be able to cancel or reduce the amount of the penalty.

  20.  Even were the criminal limb of Article 6 engaged, we consider that this would be at the less serious spectrum of what constitutes a "criminal charge". Strasbourg authority suggests where an "offence" is a lesser criminal charge, fewer safeguards may be needed to secure Article 6 compliance.[35] We are therefore confident that the safeguards outlined above, and in particular the right of access to the First-tier Tribunal, would be adequate.

  21.  Accordingly, we consider that the monetary penalty provisions are compatible with Article 6.

  22.  Article 1 of the First Protocol may also be engaged by the repayment direction and the imposition of a monetary penalty, given that these will involve the interference with an MP's pecuniary interests. However, we consider that any interference is clearly justified given the public interest in MPs not being overpaid allowances, there being appropriate sanctions to enforce such a principle and given the safeguards that surround any interference with the pecuniary interest.

  23.  Accordingly, we consider that the monetary penalty provisions are compatible with Article 1 of the First Protocol.

Investigation powers and Article 8

  24.  As noted above, the investigation powers of the Compliance Officer are very similar to the investigation powers of the Commissioner under the 2009 Act. In particular, the amendments replicate the power of the Compliance Officer/Commissioner reasonably to require information of MPs—see section 9(3) of the 2009 Act and the substituted section 9(3) contained in amendment 8. This is likely to engage Article 8.

  25.  Article 8 is intended to protect individuals from arbitrary interference in their private and family life, home and correspondence. To be permissible, any interference with this right must pursue one of the legitimate aims laid down in Article 8(2), such as the prevention of disorder and crime, and must be "necessary in a democratic society", that is proportionate to the aim pursued.

  26.  We are confident that the power of the Compliance Officer reasonably to require MPs to provide information in respect of his or her allowances is compatible with Article 8. This is because a request for such information is justified as being necessary in the public interests of the prevention of disorder or crime. It would be impossible for the Compliance Officer to conduct investigations and enforce the new system without such powers. Moreover, the requirement that the request for information must be reasonable means that the power can be exercised compatibly. The Joint Committee on Human Rights made no objection to the equivalent power reasonably to require information during the passage of the Parliamentary Standards Bill.

  27.  Accordingly, we consider that this provision is compatible with Article 8.

 (b)   Provisions to enable the IPSA to give effect to exercises of the disciplinary powers of the House in relation to the MPs' allowances scheme and pay

  28.  Because the present system of MPs' allowances is based on resolutions of the House of Commons, it is possible for the Commons to withhold those allowances by resolution. This provision would enable the IPSA to respond to any such disciplinary measures imposed by the House of Commons.

  29.  Although it may be argued that this proposal gives rise to Convention rights issues in relation to Article 6, we consider that there are arguments to suggest that Article 6 may not be engaged at all by this provision. As outlined above, there is clear authority that the exercise of certain disciplinary functions in relation to members of Parliament does not engage Article 6 because of the public law nature inherent in being a member of Parliament. Case law supports an argument that conduct and discipline concerning a member of a legislature is a matter of public law rather than private law rights. The Strasbourg court has shown reluctance to consider internal disciplinary functions as engaging Article 6, unless the outcome of the disciplinary proceedings is decisive of the individual's right to practice his or her profession.[36]

  30.  Even assuming that there is a determination of a civil right and thus Article 6 is engaged, we consider this provision is compatible with that Article. This is because this amendment merely provides a mechanism through which the disciplinary sanctions of the House may be operated. Accordingly, the compatibility of this amendment would be determined by the existing conduct and discipline mechanisms in place for the House of Commons. In this respect, there are safeguards concerning the way in which the House operates. Furthermore, the current conduct procedures in the House of Commons were designed with an understanding of the potential Article 6 issues involved in conduct and discipline matters for members.[37] This suggests that those functions and any implementation by IPSA of sanctions would be exercisable in a compatible way. We also note that the Joint Committee on Human Rights has recently observed that the procedures adopted by the House of Lords in its code of conduct satisfy the common law requirements of fairness.[38] We consider that the Commons procedures are comparable to those in the Lords, and in some respects superior, for example, in having the Parliamentary Commissioner of Standards as an independent investigator of standards issues.

  31.  Accordingly, assuming that Article 6 is engaged by this amendment, we consider that the provision is compatible with Article 6 ECHR.

  32.  This amendment may also give rise to issues concerning Article 1 of the First Protocol. This is because the functions of the IPSA may affect certain propriety interests of MPs. For example, withholding an allowance payment may affect the way in which an MP enjoys pecuniary interests under the allowances scheme or in relation to their salaries.

  33.  However, we consider that any interference with rights contained in Article 1 of the First Protocol would be justified as being in accordance with the law and in the public interest. This is because it is manifestly in the public interest for the House of Commons to continue to have meaningful sanctions powers in relation to MPs. In any event, the sanction functions of the House of Commons are discretionary and are capable of being exercised compatibly.

(c)   Payment of an MP's salary dependent on taking the oath

  34.  Amendment 4 contains provision that an MP's salary is to be withheld until they have made and subscribed the oath required by the Parliamentary Oaths Act 1866 (or the corresponding affirmation). This is the oath of allegiance. This provision may give rise to issues concerning Article 1 of the First Protocol as the withholding of salary may affect the way in which an MP enjoys pecuniary interests in relation to their salaries.

  35.  By long custom, going back to a Speaker's ruling in 1924, any MP who has not made and subscribed the oath (or corresponding affirmation) is not entitled to receive a salary. The requirement to take the oath is found in section 1 of the Parliamentary Oaths Act 1866 and not amendment 4 itself. The requirement to take the oath, along with the Speaker's Statement in 1997 that MPs who had not taken the oath would not be entitled to the other services available to all other MPs from the House, has previously been subject to challenge on the basis that Articles 9, 10 and 13 of the Convention were infringed. The arguments were rejected by the European Court of Human Rights.[39]

  36.  We consider that any interference with rights contained in Article 1 of the First Protocol would be justified as being in accordance with the law and in the public interest. As the European Court of Human Rights has previously held; "the requirement that elected representatives to the House of Commons take an oath of allegiance to the reigning monarch can be reasonably viewed as an affirmation of loyalty to the constitutional principles which support the workings of representative democracy. In the Court's view it must be open to a member State to attach such a condition, which is an integral part of its constitutional order, to membership of Parliament and to make access to the institution's facilities dependent on compliance with the condition".[40] We thus consider that provision that no payment of salary is to be made to an MP before they have made and subscribed the oath (or corresponding affirmation) would be in the public interest.

(d)   The duty on the IPSA to publish such information as it considers appropriate in respect of each claim for an allowance and each payment

  37.  As stated above, Article 8 is intended to protect individuals from arbitrary interference in their private and family life, home and correspondence. To be permissible, any interference with this right must pursue one of the legitimate aims laid down in Article 8(2), such as the prevention of disorder and crime, and must be "necessary in a democratic society", that is proportionate to the aim pursued. It is well established that personal information is protected as part of an individual's private life and that the release of such information without the individual's consent will engage Article 8.

  38.  The duty on the IPSA to publish such information as it considers appropriate in respect of each claim for an allowance and each payment may engage Article 8 ECHR. This is because those duties are likely to require the IPSA to publish personal information concerning MPs.

  39.  However, we are satisfied that the requirement to publish information in respect of claims for an allowance and each payment is compatible with Article 8. This is because the publication of such information is justified as being necessary in the interests of the prevention of disorder or crime. In turn, this is because we consider that having a transparent system is a crucial part of ensuring that MPs and the IPSA comply with the rules for the new system.

  40.  Furthermore, the requirement to disclose information is also proportionate to the aim of preventing disorder and crime. This is because the duty on the IPSA to publish only extends to publishing some information about each claim and each payment. This gives the IPSA areas of discretion about what to publish and the way in which the information is published. The IPSA can therefore decide not to publish highly sensitive information in respect of a claim. This therefore means that the power can be exercised compatibly.

(e)   Powers to make MPs' and Ministers' etc pension schemes

  41.  It is likely that Article 1 of the First Protocol is engaged in relation to the provisions dealing with pension schemes for MPs and Ministers etc (amendment 19). However, we do not consider that there is any interference with these rights. The new provisions are based on the existing provisions of the Parliamentary and other Pensions Act 1987 which currently deal with pension schemes for MPs and Ministers etc. In particular, section 2(6) of the 1987 Act currently provides the circumstances in which accrued rights, as defined in section 2(10) of the 1987 Act, may be adversely affected. These provisions, and the definition of accrued rights in section 2(10) of the 1987 Act, is replicated in amendment 19.

  42.  The other powers given to IPSA and the Minister for the Civil Service to make pension schemes in relation to MPs, Ministers and other office holders largely replicate those powers found in the 1987 Act and we consider that these are capable of being exercised compatibly.

25 January 2010















31   Committee on Standards in Public Life, MPs' expenses and allowances: Supporting Parliament, safeguarding the taxpayer (12th report 2009) Cm 7724. Back

32   See also Tapie v France Application No. 32258/96 (a Commission decision that an application by a former Member of Parliament who was automatically disqualified from elected office for five years after becoming insolvent was inadmissible) and Estrosi v France Application No. 24359/94; Pierre-Bloch v France (1997) p 16 (two cases in which the candidate declared elected was removed by the Conseil Constitutionnel for exceeding the maximum level of elections expenses). Back

33   X v United Kingdom (1978) Application No. 8208/78. Back

34   See Schouten v Netherlands (1994) 19 EHRR 432; and see Pierre-Bloch v France (1997) p 17. Back

35   See for example Duhs v Sweden (No. 12995/87), where a parking offence was imposed before a hearing. Even though this was a criminal charge for Article 6 purposes, the imposition of a penalty before a hearing was not a breach of Article 6 because the offence was minor and the fine was repayable if the applicant's objection succeeded. Back

36   Demicoli v Malta (1992) 14 EHRR 47, §33. See also Tapie v France Application No. 32258/96; Estrosi v France Application No. 24359/94 and Pierre-Bloch v France (1997) p 16. Back

37   See the report of the Joint Committee on Parliamentary Privilege (1998-99) §284. Back

38   See the Joint Committee on Human Rights, Legislative Scrutiny: Constitutional Reform and Governance Bill (4th Report of 2009-10) HL Paper 33; HC 249 §1.72. Back

39   See McGuinness v United Kingdom (1999) ECHR No 39511/98 Back

40   Ibid Back


 
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