Previous Section Back to Table of Contents Lords Hansard Home Page

8 July 2009 : Column 694

Given what has been going on in the other place, albeit by a minority of Members, as the noble Lord, Lord MacGregor, has pointed out, the Government need to act and to introduce appropriate legislation as quickly as possible. I, for one, certainly support the Government in that. However, beyond that, if there had been deals in the other place between the Government and the Opposition so that the Bill passed there with a minimum of debate, that is their business. Of course, it becomes our business when it affects how we deal with the Bill.

There is a paradox. Recently your Lordships' Constitution Committee published a report on the fast-tracking of legislation, to which the Leader of your Lordships' House and the Deputy Leader of the other place gave excellent evidence. The paradox is that what they said then does not remotely match up to what is being done now and is in conflict with the Constitution Committee's report on that subject. What is being proposed makes it impossible for your Lordships' Constitution Committee to do the job assigned to it by your Lordships when the committee was set up. One can quote various paragraphs from the report but my favourite is the absolutely stark statement in paragraph 9:

"The way policy making has been rushed, the lack of public consultation and the limited opportunities given to Parliament to scrutinise the Bill all, in our view, fail to meet the minimum requirements of constitutional acceptability".

Nothing could be plainer than that and nothing can guide us more clearly to what is our duty.

One would have thought that the Leader of the House would immediately have accepted the view of a major committee like the Constitution Committee, which has expressed its view in such a forthright way. We would have expected the usual channels-I emphasise "the usual channels"-to have assisted us but there has been complete silence from the usual channels, as far as I understand it, in accepting the peculiar set of accelerated arrangements that have come forward. Why are not the usual channels defending the way in which this House behaves? Your Lordships' Constitution Committee published a second report this afternoon and I commend it to your Lordships because it contains very good detailed examples of precisely the areas in which the detailed scrutiny must take place-I use the word "must", not "might". The Constitution Committee and your Lordships' House must be allowed to do the job of scrutiny properly.

It is clear to me that we would do it in a way which makes it absolutely certain that the legislation will be passed. We do not seek to destroy the legislation but it seems to me-this is where I disagree with my noble friend the Leader of the House-that October is soon enough to get this Bill on the statute book. It would be better than "soon enough" as we would end up with a much better piece of legislation.

My second worry is that the gossip around your Lordships' House is that the deal or the stitch-up-a better expression-between the main parties, or rather between the leaders of the main parties, is that the Opposition have been instructed to nod through the Bill. I have heard that from at least one very senior

8 July 2009 : Column 695

member of the Opposition Front Bench. That means that with all the time in the world the Opposition leadership would devote none of its efforts to scrutiny at all.

Lord Kingsland: My Lords, I am most grateful to the noble Lord for giving way. I can assure him that the Opposition have not been nobbled in the way that he suggests.

Lord Peston: My Lords, that cheers me up enormously; I must say that I think it cheers up the people sitting behind the noble Lord even more. I am always willing to believe that I have been misled. I was going to add that the fact that essentially the Opposition were saying that they not going to get involved in scrutiny was unusual, to say the least.

I now have to add one or two quite disrespectful remarks to noble Lords opposite. The most cursory reading of any of the major works on politics and government in this country tells us that the Conservative Party is the custodian of the traditions, notably the constitutional traditions, of our country. For better or worse, the Bill removes 300 years of self-regulation in the other place. You would have thought that the Conservative leadership in the other place would therefore have absolutely nothing to do with a Bill of this kind. You would have thought that if the Liberal leadership-sorry, they are now called the Liberal Democrats, but they used to be Liberals-had any sense of history, they would also not involve themselves in this. I can tell you one person who does not want to be involved at all: that is me.

Lord Kingsland: My Lords, once again, the noble Lord is very kind in giving way. The fundamental difficulty about the Bill is that it tries to do two separate things, one of which is wholly laudable and that is to deal with the immediate problem of expenses and how they are dealt with. The other is the quite separate question of financial interests; an extremely complicated matter involving the privileges of Parliament and the relationship between Parliament and the courts, which deserves long and careful consideration before we come to any legislative decisions, if those decisions are indeed necessary. The difficulty we face is that both those issues have been bundled into one document. The first needs urgent consideration; the second needs long reflection.

Lord Peston: My Lords-

The Earl of Onslow: My Lords-

Lord Peston: My Lords, I am getting tired. I should like to finish my speech and sit down. Of course I agree with the noble Lord, but that means that we must give the Bill full scrutiny in this House and take as long as is required. All the problems can be solved by a simple statement from my noble friend the Leader of the House. All she has to do is to say that there will be no accelerated timetable, and then the Government will have their legislation in October. That is all she has to do. In fact, we could probably end today's debate if she were to get up to say that right away. If the media, which have convinced themselves that they

8 July 2009 : Column 696

are the real Government in this country, complain, she can then say to them that it is not Her Majesty's Government's fault, it is those old fogies in the House of Lords who they should blame.

5.03 pm

Lord Higgins: My Lords, we are told by the Government that the Bill is designed to restore public confidence in Parliament in the aftermath of the expenses scandal. It is certainly highly desirable that that objective should be achieved, but the reality is that the way in which the Bill is being pushed through and the drafting of the Bill will themselves bring Parliament further into disrepute. That is the nub of the situation.

The noble Baroness the Leader of the House says that this is a Bill that Parliament-or, rather, the House of Commons-wants and that the House of Commons ought to have it. I think that that is seriously open to doubt. I do not think that the House of Commons or, indeed, this House wants a Bill that has the most horrendous constitutional implications and undermines some of the basic building blocks on which Parliament operates. That is not the kind of Bill that either the Commons or this House wants or deserves. I find it extraordinary that the Bill in its original form should have appeared as it did. I cannot imagine what the people drafting it were thinking about.

Apparently, what is now envisaged is that we must rush the Bill through so that it is on the statute book before the Summer Recess. Members of Parliament are going to rush back to their constituents waving the Act, as it will then be, almost like Chamberlain returning from Munich, saying, "Fear not! All our troubles are over. You can have faith in Parliament. I am now going to be very carefully regulated by IPSA"-they may ask what that is-"and don't worry about it. All is well". Then, if the MP is honest, he will go on to say, "But I feel bound to point out that the cost of getting this to you now, rather than in the autumn, is that serious aspects of the Bill of Rights, which have protected your interests for years, have been eroded and parliamentary privilege has been under attack in order to get this Act to you quickly". The constituent may well turn round and ask whether parliamentary privilege is something that the MP wants to keep, but the MP may say, "It's your privilege. It's people's privilege, not Parliament's privilege. It enables me to stand up in the House of Commons and say things without fear of being taken to court by someone I am rightly attacking on your behalf". It does not seem to me to be sensible to want to create that situation so that Members of Parliament can get to their constituencies with the Act in a few weeks' time, rather than in the autumn, by which time we could deal with some of these immensely difficult problems.

I shall make one more quick point. The Leader of the House referred to a cross-party consensus. We all know that there is no cross-party consensus. What has been reached between closed doors is an agreement between the leaders of the parties, perhaps motivated to some extent by political expedience in the present circumstances. It is not a cross-party consensus and I hope very much that, in the course of the debates, abbreviated though they may be, unless we accept the

8 July 2009 : Column 697

amendment tabled by my noble friend Lord Norton, we can deal with the matter more appropriately. I believe that there is an underlying, deep, cross-party consensus against the Bill as now drafted and that we need to have the opportunity to amend it.

Having said that, I agree with what the noble Baroness said in her opening remarks about the independent, self-governing aspects of both Houses. We recognise that she is very good at defending the interests of this House and is doing a splendid job in that respect. However, we must recognise that the independence of each House operates both ways. If it were just a question of qualifications, an enormous number of Peers in this House have great experience of the House of Commons and how it works, whereas, alas, very few people at the other end-although one or two of them now appear at the Bar since we have had Secretaries of State in this House-have any idea of what goes on here. That was certainly true when I was in the Commons. So, in terms of qualifications, it is more appropriate to say what we think ought to happen in that House than for them to say what happens in this House. There is no doubt that we win hands down. None the less, I think that the noble Baroness is right to preserve the view that we are independent in that sense.

We have been immensely well served by the committees of the House and, indeed, the Justice Committee in the other place. We have had a succession of extraordinary reports produced at very short notice that ought to form the basis on which we go forward. In particular, the committee chaired by my noble friend Lord Goodlad has produced extraordinary reports in a short space of time. For example, the committee's 17th report points out that the Bill has already been somewhat changed by the Government agreeing to remove one clause and by the defeat on the other very important constitutional clause. It is important to point out that so little time was allowed in the House of Commons for debate on this issue that the implications of the defeat and the consequential amendments were not able to be debated there. They will have to be debated in this House.

Lord Jenkin of Roding: My Lords-

Lord Higgins: My Lords, with great respect to my noble friend, I want to be as brief as possible.

It is important that we recognise that the situation is somewhat better than it was, but there is still an immense amount to be done. The latest report of the Select Committee-and, indeed, the extremely helpful memorandum by the Clerk of the Parliaments, which I am glad has been provided-points out that there are still many issues of great constitutional importance that we need to deal with. I hope that we will be given adequate time and that the amendment proposed by my noble friend Lord Norton will be accepted, because we can then proceed on a sensible basis. If that is not so, it is important that the Government should clean up the highly objectionable clauses that the various committee reports point to, preferably with government amendments or, certainly, with acceptance of other appropriate amendments, so that we can get a Bill that is not wholly objectionable and does not completely defeat the object that it seeks to achieve.

8 July 2009 : Column 698

In that context, I refer to the point that was made-perhaps rather unfairly-in the Constitutional Committee's report. It says that the noble Baroness, Lady Royall of Blaisdon, talking,


"The package ... is a coherent whole, and no part of it would work without the rest".

We have lost at least one major bit since then, so we are entitled to ask the noble Baroness where we stand after that. The committee goes on:

"The bill will accordingly have to be substantially recast. To do so under an accelerated passage is in our view wholly unacceptable given the questions of constitutional principle and detail that it raises".

That is a strong statement, but I hope that the noble Baroness can, in winding up, tell us how she proposes to recast the Bill if, indeed, we do not have time to sort it out. None the less, I very much hope that, when we come to a decision on the matter tonight, it will be to allow adequate time, so that Members of the House of Commons can go back to their constituencies saying, "You may be reassured by this Bill, which has been properly considered by Parliament, with a great deal of assistance from the Members of the House of Lords. This is something with which we can now restore faith in Parliament as a whole".

5.12 pm

Lord Lester of Herne Hill: My Lords, it is a particular pleasure to follow the noble Lord, Lord Higgins, because 43 years ago he defeated me when I appeared in the Labour interest in a general election in Worthing-so decisively that it was not necessary to count the votes, one simply weighed them. I agree with the last part of what the noble Lord said, if not the whole. I should declare an interest: I was counsel in the case of Pepper v Hart, dealing with parliamentary privilege, and next week I am in a case where one Secretary of State is trying to use parliamentary privilege to prevent proceedings of this House from being seen by the courts.

The way in which the Government have rushed to introduce and propel this hastily cobbled Bill is not how the Executive should use their law-making powers. However, in considering the Bill, we should remember, as the Leader of the House emphasised, that its aim is to deal with the House of Commons, not the House of Lords. We should not filibuster or thwart but seek to improve the Bill as far as we can. I also agree with my noble kinsman, the noble and learned Lord, Lord Woolf, who said that the House must not abdicate its responsibilities but scrutinise and improve the Bill. It is vital for us to work together, across and beyond parties, to increase public confidence in Parliament and politicians and in the fact that in both Houses most of us are, I hope, dedicated to public service.

One of the problems that the Bill creates is its impact on the fundamental constitutional principle that statements made in Parliament should be protected by absolute privilege. As has been said, parliamentary privilege is not some fusty, archaic doctrine, and "privilege" is a misnomer. Article IX of the Bill of Rights 1688 serves

8 July 2009 : Column 699

the dual interests of free speech in Parliament and the separation of powers between Parliament and the courts. It is designed not to protect individual MPs but Parliament itself, although for party-political reasons a squalid exception was made in Section 13 of the Defamation Act 1996, enabling MPs to pick and choose, on the basis of personal self-interest, whether to waive parliamentary privilege or to invoke it as claimant or defendant in libel proceedings. That was, as Lord Simon of Glaisdale pointed out, a constitutional monstrosity, which continues to deface the statute book.

Article IX of the Bill of Rights can be taken too far. As I say, I declare an interest as counsel in Pepper v Hart, when I appeared against the then Attorney-General, the noble and learned Lord, Lord Lyell, as he will recall, where an attempt was made by him on behalf of the Commons to prevent the courts from referring to what Ministers had said in Parliament when courts interpret ambiguous legislation. It was claimed that the Commons would strongly object if courts were to use Hansard as an extrinsic aid to statutory interpretation. Other common law countries, including Australia, New Zealand, India and the United States, had done so without any violation of their constitutional protection of speech and debate in their parliaments. The Law Lords rejected this inordinate claim and there has not been any subsequent objection from the other place.

More recently, it has even been suggested from Commons advisers that the practice of referring in court to reports of Select Committees, such as the Joint Committee on Human Rights, of which I am a member, in legal proceedings violates the Bill of Rights because it involves the risk that the courts may question proceedings in Parliament. That, too, is an inordinate claim, which would place the courts in blinkers. I am sure that my noble kinsman, the noble and learned Lord, Lord Woolf, would agree, as he has said so in the past as a judge. The courts know when and how to keep off Parliament's lawns while exercising their vital duty of interpreting the law of the land. There have been important cases where neither the Executive nor the citizen could have had a fair hearing without the benefit of the proceedings of Select Committees when deciding issues of legal public policy and where the courts would have been denied crucial evidence.

In the present case, the Clerk of the Commons has explained his perception of the problems of the privilege aspects of the Bill. He is surely right to remind Parliament of the need for a parliamentary privileges Act to implement the recommendations of the Joint Committee on Parliamentary Privilege in 1999, but there is no appetite for one in the Government. I respectfully do not agree with the Commons Clerk's opposition to what he describes as,

If that view were taken literally, it would inhibit or even prevent necessary reforms. His concerns about encroachments on parliamentary privilege are real but they go too far. He takes a similarly negative position on the draft bribery Bill, arguing that privilege prevents any use of anything said in Parliament, even to prove that a Member committed the offence of corruption.

8 July 2009 : Column 700

His memorandum argues in paragraph 19 that admitting evidence of proceedings in Parliament effectively removes the right of free speech.

We should look for enlightenment across the Atlantic. Article I, Section 6, of the American Constitution provides, like our own Article IX, that any speech or debate in either House of Congress,

This so-called speech and debate clause protects legislators from punitive executive or judicial action and reinforces separation of powers. In the 1970s, the American Supreme Court considered several cases aimed at preventing claims of privilege from going too far. To take one example, which was referred to the Constitution Committee, in a case called the United States v Brewster a former Senator had been indicted for taking a bribe to influence the performance of his official legislative duties. He sought protection under the speech and debate clause to declare the indictment invalid. In upholding the indictment, the Supreme Court ruled:

"Taking a bribe is obviously no part of the legislative process or function".

The clause was read as prohibiting an inquiry into the motivation for performing specific legislative actions. That surely is the common-sense and balanced approach that will be taken by our own courts. I therefore respectfully disagree with the somewhat overprotective approach taken by the Clerk of the Commons. It is important to keep Article IX of the Bill of Rights within proper balance and limits, as our courts and other courts of the Commonwealth and the United States have done in recent times.

The human rights problems are at least as important as those about parliamentary privilege. They were examined by the Joint Committee on Parliamentary Privilege in its report 10 years ago. It is lamentable that the Government have failed to give effect to its recommendations, including the repeal of Section 13. The committee was chaired by the noble and learned Lord, Lord Nicholls of Birkenhead. Its members included the noble and learned Lords, Lord Mayhew and Lord Archer, the noble Lord, Lord Waddington, Lord Wigoder, my learned friend Paul Tyler MP, as he then was, and Ann Taylor MP, as she then was-not a bad committee.

The committee pointed out in paragraph 280 the importance of ensuring that the procedures followed in the investigation of complaints against MPs should match what it called "contemporary standards of fairness". It set those out in paragraph 281. Those recommendations were endorsed by the Committee on Standards in Public Life in 1992. The Joint Committee on Human Rights then reaffirmed them and the chair of the Joint Committee on Human Rights, Andrew Dismore MP, speaking in the other place on 29 June at cols. 82-7 of the Official Report, made an extremely strong speech in which he explained them fully. Later in the process, the Justice Secretary, the right honourable Jack Straw, indicated, as I mentioned, that he was open-minded about introducing some fairness guarantees.

We do not know what advice the Attorney-General has given. That perhaps illustrates the need for Parliament to have its own legal adviser. Perhaps the much delayed constitutional renewal Bill will have to be amended to

8 July 2009 : Column 701

deal with that. In any event, Ministers must have the committee's recommendations drawn to their attention as well as its references to Article 6 of the convention and the judgment of the Strasbourg court in the case Demicoli v Malta. As the Select Committee on Parliamentary Privilege observed 10 years ago:

"The existence of this jurisdiction"-

at Strasbourg-

That applies as much to the functions of IPSA and IPSA's commissioner as to parliamentary committees. They should have an overriding duty to be manifestly seen to be fair and to ensure fairness in their procedures.

Next Section Back to Table of Contents Lords Hansard Home Page