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4.22 pm

Lord Woolf: My Lords, the Bill has always been of modest physical dimensions but, as a result of the amendments made in its passage through the Commons, it became even smaller. I am pleased that further concessions have been made today by the noble Baroness, Lady Royall; this means that its size is to be yet further reduced. However, despite this, the Bill still raises issues of significant constitutional importance. Accordingly, while its contents may be primarily of concern to the other place, I would suggest that this House would be wrong to abdicate its responsibility to revise its contents, particularly in relation to constitutional matters.

In so far as this has been possible in the time available, the Select Committee on the Constitution has given careful consideration to the Bill in its present form. Its views have been made known to the House by its chairman, the noble Lord, Lord Goodlad. I agree with the views of the committee and will try to avoid trespassing on what the noble Lord, Lord Goodlad, will say about the views of the committee.

There are issues that I would like to address, which are by no means exhaustive. First, the Bill is premature. Secondly, I raise the question of whether we need a new criminal offence that can be committed only by Members of the House of Commons, when there is

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already a perfectly good existing criminal offence which would be applicable and which gives greater powers of punishment than those in the Bill. Thirdly, is there a danger that the Bill will undermine the delicate relationship between Parliament and the courts? This has been carefully established by the courts in relation to not interfering with proceedings in Parliament.

I have not the benefit of the great experience of the noble Lord, Lord MacGregor of Pulham Market, whose speech I endorse, but in addressing these issues I take into account my experience as chairman for a short time of the sub-committee on interests of Members of this House, the cases bearing on the relationship between Parliament and the courts that came before me when I sat as a judge, and the deliberations of the Select Committee on the Constitution.

On the prematurity of the Bill, as I understand it a primary purpose of the Bill is to ensure that Members of the other place adopt the appropriate standards in making claims for the repayment of allowances. However, those standards have not yet been determined and are still under consideration. We still await the report of Sir Christopher Kelly. If you are still seeking to devise the appropriate standard, is it not unwise to introduce new methods of enforcing an as yet unidentified standard? Surely the method of enforcement should be tailored to meet the standard, not the other way round. The Bill curtails what the standard can be before it has been introduced and accepted by Parliament in that it assumes that it will be allowances based.

Let me illustrate what I mean. A great many of the problems that have arisen over expenses are due to a lack of clarity about what can properly be claimed. It is my understanding that if clarity had been introduced into what Members in the other place were entitled to, many of the situations which have resulted in criticism would not have arisen. If that clarity could now be achieved, much of what is proposed in the Bill could be unnecessary.

To take an extreme example, if it was decided that instead of being an unquantified amount a set sum was payable irrespective of what had been expended, the problem, at least in relation to that allowance, would largely disappear. How much better it would be to wait until full consultation has taken place and then legislate than to take the present course, which involves determining the remedy before the true dimension of what is required is known.

As regards the new criminal offence, it is always possible for dishonest persons to make claims to receive that to which they are not entitled. This can happen in many circumstances and criminal offences can be committed by all sections of society. This is certainly not a temptation confined to Members of the other place. The criminal law therefore makes full provision to ensure that those who commit offences of this nature can be convicted and duly punished. What is the purpose of creating this new offence, which I believe does not add to the existing law, by providing that a Member, who for the purposes of the allowances scheme,

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This is well trodden ground. The presence of the new offence will only create confusion and allow the unjustified point to be made that Members of the other place are being treated with undue preference; for example, because the punishment is less than those available against the ordinary citizen.

On the courts and Parliament, recent constitutional changes have undermined certain of the constitutional safeguards which have benefited our society for generations. This Bill creates a danger of undermining at least one of those safeguards, which is that the courts should avoid pronouncing on matters affecting the internal affairs of either House of Parliament. So far, by the exercise of appropriate sensitivity the courts have avoided conflict with Parliament. This has proved to be a constitutional safeguard. It is difficult to conceive of any more damaging way of disturbing the delicate relationship between Parliament and the courts than the courts taking upon themselves a supervisory role in relation to the manner in which Members are to be compensated for expenses incurred in the performance of their parliamentary duties.

The Bill introduces methods of investigating, policing and adjudicating upon the activities of Members of the other place by IPSA and the commissioner, which could well come before the courts if the Bill remains in its present form. The adjudications by IPSA, which the Bill involves, will have very serious consequences for the reputation of those Members-albeit that they would not involve penalties of the sort imposed by the criminal courts. The Members who are proceeded against can reasonably expect to have the same rights as would be available to those who appear before ordinary disciplinary tribunals. The new bodies that are being created-the commissioner and IPSA-have many characteristics of a tribunal which is subject to judicial review.

I note, however, what was said by the noble Baroness, Lady Royall, about no recommendations being made; I appreciate that that could improve the position. Despite that, this is still a very delicate situation. The fact that, at such a late stage, it was thought right to make that change indicates the danger to which I am referring.

There is, therefore, a real risk that the system being introduced by the Bill will inadvertently make the activities of those bodies subject to review by the courts. The courts in this way will be drawn into adjudicating upon what has been happening in Parliament. Generally this is undesirable, but it is particularly undesirable because, in those proceedings, questions of parliamentary privilege could well arise. The danger of this happening should be avoided, unless there is no alternative. However, Clause 6(3) provides that, for the purposes of investigation, a Member of the other place must-and I emphasise the word "must"-provide the commissioner with any information he reasonably requires. I suggest that could be a recipe for conflict which could end in the courts. One way that the danger could be reduced-

Lord Lea of Crondall: My Lords, I am grateful to the noble and learned Lord for giving way. Surely, the consideration of the courts being involved with Parliament will arise in ordinary criminal proceedings against a

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Member. Can the noble and learned Lord explain why that does not also raise an issue about courts adjudicating upon Members? How can that be preferable?

Lord Woolf: My Lords, fortunately, the position of criminal proceedings against a person who is a Member of Parliament is subject to the ordinary principles; in that situation parliamentary privilege would arise. Parliament could not be landed in a position where the courts were undermining the privilege of free speech, which is so important, in the Houses of Parliament. However, once you put a specific statutory obligation upon a Member of Parliament, as this Bill does, to provide information without limitation as to what information can reasonably be sought, that surely creates a different situation. It is that different situation to which I was seeking to draw attention.

I was going to refer to the fact that perhaps an alternative way of dealing with the matter would be by giving an express right of appeal to the Member, instead of the Member relying upon judicial review. I note what has been said about the possibility of an appeal to the Privy Council-an appeal which is now to be dealt with by our new Supreme Court. I am bound to ask: is that the right place for an appeal on a matter of this nature to go, bearing in mind that it is thought that the criminal offence would go before a magistrates' court? You would get a ruling on evidence by the Privy Council in relation to proceedings which could take place in the magistrates' court. The Supreme Court will have jurisdiction over the whole of the United Kingdom-to that extent it is different from any other court-but the Crown Court and magistrates' court, at least in England and Wales, would seem more appropriate destinations for an appeal. However, for different reasons, each would be inappropriate destinations for matters with which the Bill is concerned.

Lord Lester of Herne Hill: My Lords, it is a rare privilege to question a senior judge, and I will do so as modestly and as quickly as I can. Does he agree that there is no objection to there being an internal independent appeal mechanism set up instead of the Privy Council, or that the Privy Council-as it deals with appeals against members of the professions-could do precisely the same if it were a disciplinary matter? In other words, there could be either an external body, which has the disadvantages that the noble and learned Lord indicated, or an independent and impartial tribunal set up within the House of Commons, presided over by a senior judge, that could deal with the matter in the way that the noble and learned Lord has indicated.

Lord Woolf: My Lords, these are matters that no doubt should be considered. It is the need to consider matters of that sort, to which I will not-if the noble Lord will forgive me-give a response immediately, that indicates why the course that has been taken in relation to this Bill was perhaps not the one that was needed. These are dangers which need very careful examination. After careful deliberation, a system needs to be made which stands the test of time.

I suggest that that there is a dilemma there. We could hardly take away from Members of Parliament the rights of access to the courts to which other

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members of the community are entitled. The dilemma will remain. Surely this is a situation on which there should be further reflection.

4.38 pm

Lord Goodlad: My Lords, the Leader of the House referred to the three reports of your Lordships' Select Committee on the Constitution on this matter: the 17th report of this Session, published on 6 July; the 18th report, entitled Parliamentary Standards Bill: Implications for Parliament and the Courts; and a further report entitled Fast-track Legislation: Constitutional Implications and Safeguards, which followed the taking of evidence in public. I respectfully associate myself with everything said by the noble and learned Lord, Lord Woolf, who is a member of the committee; by the noble Lord, Lord Shutt; and by my noble friend Lord MacGregor.

Your Lordships' committee deplored the decision to seek to suspend normal parliamentary proceedings in consideration of the Bill, especially since the Bill seeks, by establishing a statutory external regulator for Parliament, to break the constitutional convention that Parliament regulates its own affairs. Your Lordships' committee expressed doubt about whether a Bill expedited through the legislative process without proper scrutiny or public consultation would enhance public confidence in Parliament or the reverse. Our conclusion was that it would have the reverse effect.

Your Lordships' committee's first report on the Bill focused on process and haste. The second report considered the proposals for the creation of an independent parliamentary standards association. We were surprised that there was no mention in the Bill of the party political affiliation, if any, of the members or chairman of that association.

Your Lordships' committee considered the question of members appealing against decisions by the proposed association and parliamentary commissioner. As a matter of constitutional principle, the decisions of a public authority should, in our view, be subject to the possibility of an appeal to a different body. We found it troubling that the Bill is apparently proceeding without the necessary policy work and consultation on appeals being conducted-and perhaps being seen to be conducted.

As the noble and learned Lord, Lord Woolf, said, your Lordships' committees do not support the creation of new offences applicable to a small number of people whose potential misconduct is already punishable under existing law. As the noble and learned Lord said, the maximum sentence under the Fraud Act for unlawful expense claims by MPs is 10 years' imprisonment. Under the provisions of the present Bill, it is one year.

Your Lordships' committee examined the possibility of prosecution of Members of Parliament for paid advocacy statements made in Parliament. Under the current provisions of the Bill, they would be inadmissible as evidence in court. Nor is it clear whether prosecutions could be made under Scottish law. We shall examine with great care what has been said by the Leader of the House.

Since the expression "parliamentary privilege" was coined, the word "privilege" has, over the years, acquired an understandably pejorative aspect. The Bill before

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us goes to the heart of the role of Parliament, for which we in this House, our predecessors and those in the other place have made many sacrifices over the centuries.

I have touched briefly on a fraction of the considerations rehearsed in the three Select Committee reports currently before your Lordships' House. I hope that the Government will not seek to rush legislation through this place that would diminish public regard for Parliament rather than enhance it.

4.43 pm

Lord Howe of Aberavon: My Lords, I, like my noble friend Lord MacGregor, must acknowledge that for a short time-just one year compared with his two-I was Leader of the House of Commons and chairman of the Privileges Committee, as we then called it without blushing. I agree absolutely with all that has been said both by my noble friend Lord MacGregor and by the noble Lord, Lord Goodlad.

We are faced with a serious situation, which has prompted-although not in a very sensible way-the preparation of serious measures in response to it. However, it is important to put them in perspective. I fear that, in the 20 years that have passed since I was Leader of the House of Commons, the morale of parliamentarians, Members of the other place, has declined steadily. We need to consider the impact of what is now being proposed on the long-term prospects for that.

My recollection of the atmosphere in those days, when we had only just invented our first parliamentary standards commissioner and the Privileges Committee had greater freedom and greater self-confidence, is that the committee and its members were confident that if such a crisis had arisen, they would have been able to handle it. I had as my colleagues parliamentarians as diverse and emphatic as the late Lord Biffen and the by no means late Tony Benn. It was a traditional, confident body. I am anxious that what follows from this will try to restore that confidence as well as the standards.

We have, in a way, been here already. I had forgotten until the other day that the noble Lord, Lord Neill of Bladen, had himself been charged, in April 2000, with making proposals for standards of conduct in this House. I wrote then a document for his consideration and this is what I said:

"My central proposition is that the tide of oversight and regulation of Members of Parliament should now be seen as having already reached its high water mark. In the Commons indeed it has already become unduly intrusive and should now begin to recede".

I drew to his attention a quotation that I have overworked frequently. It is from Lord Moulton, the distinguished liberal Law Lord, in 1912:

"There are three great domains of human conduct. The first is where our actions are limited or forbidden by law. Then there is the domain of free personal choice. But between these two is a third domain, that in which there is neither law nor unfettered freedom. This is the domain of 'obedience to the unenforceable', where people do right although there is no one and nothing to make them do right but themselves".

That was then a proposition understood. It has been a proposition on which many of our self-disciplines

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have been based. Indeed, it was the foundation of the determination of this House to be self-regulating without the need for external pressure. It is a perfectly respectable standard. That is why I was distressed when the Prime Minister, I think, began repudiating the notion of behaving on our own devices like a gentlemen's club. In fact the whole essence of self-regulation, if it is properly to work, is mutual respect in that way, and that is a way to which we should wish to return, if we can.

I am not challenging the need now for tighter measures of the kind that we are discussing today. I am really saying that we need to try to get the balance right and restore the morale and self-confidence of Members of the other place, as we would here. I agree with those who have said that there has been a decline-one must put it as crudely as this-in the self-confidence of Members of the other place, alongside an enhancement in the narrow professionalisation of their political role. The other place now lacks the presence of people with wider experience in almost every occupation of which I can think. Nowhere is it more obvious and more critical than in the field of the law officers of the Crown. We have at the moment an Attorney-General in this House who is immensely competent and well qualified for the post. But in the days when I became Solicitor-General, and that is now some 30 years ago, I was one of probably half a dozen people competing for the job. At that time the House of Commons had a mass of people, not just in the law but in other professions, who were there with those qualifications, giving a spread of confidence and competence to the House.

That has changed, and the prospect of entering Parliament at the present time is not very encouraging. We need to have a Parliament that is able once again to spread its confidence and its talent. That is why I feel that we must not only be careful in the adjustment and measurement of the measures that are necessarily now being taken but also ask ourselves whether there are not other ways in which Parliament has abdicated from areas where it once used to be responsible and behaving effectively in areas of need.

The first example is the fact that we have now had in the Commons a sequence of four parliamentary commissioners for standards, all people of great integrity and all coming from a background wholly different from the one in which they have had to exercise their powers. One wonders whether we cannot get away from that contraction of the self-regulatory capacity of the House of Commons.

Another example is the extent to which the Electoral Commission has taken over many functions that used to be determined by Speaker's Conferences. The first chairman of the Electoral Commission was a man for whom I had the greatest admiration as the director of the BBC World Service. However, his background and training, and that of his colleagues, were not the most appropriate to handle an area that had been taken away from the House of Commons. Speaker's Conferences are not all that ancient-the first was held in 1916-but they became more frequent after World War II, being held in 1944, 1965, 1973 and 1977. Parliament-the House of Lords was also represented on Speaker's Conferences-then played a part effectively and with

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respect, but we have now sub-contracted that role to an organisation which, frankly, lands a whole range of ill considered propositions in front of us. Therefore, over the past decade or so the electoral system has gone through turmoil so fast that even I can hardly understand the ballot paper.

Those are my two points: Parliament should set about reclaiming functions that it used to do well and we have to get the balance right, although we have to be very careful to ensure that we have a sufficiently tight means of preventing any further misbehaviour of the kind that has caused this problem. Just as my noble friend Lord MacGregor drew attention to the current under-financial reward for Members of the House of Commons, so we also have to ensure that the House itself is rewarding and welcoming, so that it can once again attract real people and not just narrowly qualified professional politicians to perform a job of huge importance. It is our function not only, as some people have said, to protect the House of Commons from itself but also to enable the House to regain some of the self-confidence that it used to enjoy-I sound like a very old man indeed-in the days when we were there.

4.52 pm

Lord Peston: My Lords, I address your Lordships today with reluctance. Despite the great range of expertise on the subject before us, we found on the Labour Benches that none of my noble friends, except my noble friend Lord Barnett, felt able to take part in this debate. Therefore, both I and my noble friend felt that we had no choice-we had to take part.

I begin by thanking my noble friend the Leader of the House for her introduction to this debate and for her obvious desire to be conciliatory. As an example, I had thought that the Prime Minister had said in terms that the principles of the Bill would be applied to reform of the House of Lords when that took place. That, I must admit, frightened the life out of me, but I understand from my noble friend that that was based on a complete misinterpretation and that, when we come to reform, we are not going to be told, "You accepted this for the Commons Bill; therefore, you have to accept it for the Lords Bill". I hope that, when she replies to the debate, my noble friend will reassure me that I did not misunderstand what she said and that we will not be confronted with that argument. If we are, my view is that we ought to throw this Bill out rather than amend it.

Lord Jenkin of Roding: My Lords, I do not want to comment on what the noble Baroness the Leader of the House said, but it is right to remind the House that the Justice Secretary, as recently as 29 June, said absolutely specifically that,

The noble Baroness is shaking her head. I hope that at some stage she will firmly disown that statement.

Lord Peston: My Lords, I thought she had. She will have an opportunity, as she gets a second chance to speak which is not available to the rest of us.

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