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There also needs to be a right of appeal, whether through the Judicial Committee of the Privy Council against any determination by IPSA or by the Commons that amounts to the determination of a criminal charge, or a Member's civil rights and obligations, or through some other body. Having listened to the noble and learned Lord, Lord Woolf, I think that the better path might be to include within the Bill at Committee stage something familiar to those who deal with disciplinary offences against lawyers, doctors or accountants, where a special independent and impartial tribunal is set up under the statute that is able to look at the substance of complaints and allegations, and not merely by way of judicial review. I am not drafting, but if one were to say, "For the purposes of this Act, there is to be a tribunal known as the Parliamentary Standards Tribunal, to have the functions conferred on it by this Act", and, "Members of the House of Commons should have a right of appeal to that tribunal against any determination by IPSA or the House of Commons amounting to the determination of a criminal charge or a Member's civil rights and obligations, within the meaning of Article 6 of the convention", that would wholly meet the obligations of the United Kingdom that bind Parliament as well as the courts and the Executive. It would avoid the conflict that everyone is rightly worried about between the Queen's courts on the one hand and Parliament on the other under the doctrine of parliamentary privilege.
I respectfully suggest, therefore, that consideration might urgently be given to creating the kind of tribunal that the Prime Minister, as Chancellor, created in the Financial Services and Markets Act 2000 when he set up the Financial Services and Markets Tribunal dealing with disciplinary matters in exactly the way that I have suggested. Those interested in matters north of the border, as I am, will recall that, when recently the Scottish Parliament was dealing with how to discipline naughty solicitors, all these issues were raised and the Scottish Parliament decided to create an independent and impartial special tribunal to deal with disciplinary matters in that way.
I shall not now bore the House by commenting on the Explanatory Notes dealing with legal advice about the European convention. However, I should like to point out one rather comical matter. If, in our sad lives, we study the Explanatory Notes in the Commons and the Lords, we find an interesting difference between
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Finally, the Constitution Committee pointed clearly in paragraph 35 of its most recent report-from lunchtime-to the need to create a domestic appellate body that is sufficiently independent and impartial to satisfy the requirements of the convention. If that were done, I would feel much more confident in supporting the Bill.
Lord Mayhew of Twysden: My Lords, like the noble Lord, Lord Peston, I begin my contribution to this debate by thanking the Leader of the House for the sensitive way in which she introduced the Bill this afternoon, and I admired the delicacy of her footwork. However, among the very sound doctrine about the need and duty of this House to revise legislation coming to it from the House of Commons, there was also a delicate warning off from any notion that we might be looking at an extension of the time that the Government desire the Bill to take. If I remember correctly, the noble Baroness said that this was about the House of Commons only and for the House of Commons, and that it would not be extended to this House. She was taken up on that by the noble Lord, Lord Peston, and the noble Lord, Lord Jenkin.
"A document deposited in the House of Commons Library by the Government on 20 May 2009, referring to the proposed Independent Parliamentary Standards Authority, states that it is clearly appropriate that this new body also takes responsibility for these issues in the Lords".
"We recognise that the principle of self-regulation operates differently in the House of Lords. It is clear that extensive work and consultation will be necessary in order to ensure the agreement of the House to the effective transfer of responsibilities to the new body".
Like my noble friend and the noble Lord, Lord Peston, I look forward keenly to the noble Baroness's response to the questions that she was asked in that regard. The very brief life of this Bill rather starkly illustrates the wisdom of the old parliamentary adage, "Don't go legislating in haste, or you will repent at leisure". A gloss on that might be added, "Especially in July". The remarkable Clause 6, providing for a statutory code of conduct for MPs, has already had to be withdrawn. In fact, the Lord Chancellor was driven to repent before he had finished his Second Reading speech, by withdrawing that clause. He did so in the face of some savage condemnation for what might be called its unconsidered constitutional dismemberment, with warning criticism, already referred to, from the Clerk of the House of Commons. The Lord Chancellor then suffered the mortification of Clause 10-the no less objectionable parliamentary proceedings clause-being defeated without any debate, the Lord Chancellor's own guillotine having descended on himself. I tried to think of some allusion about petards, but failed.
Now, today, it was announced at the end of the Leader of the House's speech that part of Clause 5 relating to paid advocacy is also to be withdrawn. It is a shrinking Bill, but one that I none the less suggest to your Lordships still needs the extra time-that should more appropriately be called the ordinary time-that would be secured by the amendment to be moved later by my noble friend Lord Norton.
One could take a certain grim pleasure in all this if it were not for the fact that the Bill itself is so deeply alarming. So much has been said about that that I shall try not to repeat it. Your Lordships' Select Committee has done full justice to it in a report the like of which, for the severity of its unanimous criticism, I have never seen. Of the two clauses concerned, the report states at paragraph 2:
Like several noble Lords who have spoken today, I think that it is a real pity that the word "privilege", attaching as it does to constitutional safeguards, has acquired a rather foreseeable pejorative flavour. In truth, the privilege is that of the public who are ensured that their representatives in Parliament speak without fear of unpleasant consequences, whether at the hands of the Executive or the judges. The trouble with the Bill even as amended in the other place is that it still-I quote again from the Select Committee's report at paragraph 7-establishes,
Immense benefits for individual freedom and the rule of law have flowed over the centuries from the settlement in the Bill of Rights and the separate jurisdictions of Parliament and the courts. We had an enormously interesting and authoritative speech from the noble and learned Lord, Lord Woolf, on the importance of that being maintained. I am quite certain that the judges do not wish to see it disturbed. I reckon that they are mightily relieved that under our domestic constitutional arrangements, Members of Parliament answer only to their electorates in respect of parliamentary matters, not to the judges. As for the Commons, in my 23 years there, I never detected any desire to offer any sort of welcome for what was liable to be described as interference from the judges.
Since it is the extraordinary fact that these proposals certainly have not received the very careful examination called for by the Select Committee, or anything approaching it, and since the Government intend that they shall not receive it here, one is driven to ask why. I am afraid the answer is that Ministers have simply lost their heads. I have sympathy for them and for all MPs in their present travails, but it cannot be sensible to behave like this, without even a sunset clause, in order that,
It cannot be sensible either, I suggest, on constitutional grounds. Nor can it on more immediate practical grounds, for when its true import is understood, it is likely to diminish public confidence even further.
Lord Lester of Herne Hill: My Lords, listening to the noble and learned Lord, I wonder whether he still agrees with the Joint Committee on Parliamentary Privilege, of which he was a member, which pointed out that the Strasbourg court would have jurisdiction if the procedures in the other place do not operate fairly. Does that not give rise to a practical problem, which has to be solved; that is, to ensure fairness by some tribunal that will prevent the Strasbourg court having to intervene? That is what the Joint Committee was saying.
Lord Mayhew of Twysden: My Lords, I am grateful to the noble Lord. That is one of the many complex matters that deserves far fuller discussion and decision than is possible for somebody standing on his feet, either when making a speech or having it interrupted. I was suggesting, perhaps presumptuously, that some cool, calm deliberation is needed. Very notably, that is what was called for in the other place by the very senior and experienced Labour Member Mr Denis MacShane. He said-reluctantly, as a long-standing socialist and no friend of the House of Lords as it is presently constituted-that he hoped that the Lords,
"I speak simply out of deep concern that we are legislating in haste and without clarity, and creating an incredibly powerful office that can interfere substantially with what Members of Parliament do". -[Official Report, Commons, 30/6/09; col. 211.]
Lord Armstrong of Ilminster: My Lords, the evil that the Bill is intended to address needs to be remedied, and one can understand the Government's anxiety to be seen to be seeking to remedy it with dispatch and urgency. I add my own tribute to the way in which the noble Baroness the Leader of the House presented the Bill this afternoon, but I wish to differ from her in one respect. She was, I think, trying to argue that the Bill has gone through all its stages in another place and that, as it applies only to that other place, it is for Members there to decide how the evil should be remedied.
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The Government are much attached to constitutional reform. This measure is constitutional reform with a vengeance. It might almost be called "constitutional regression". We should think long and hard before passing with unseemly and unnecessary haste a measure that puts at hazard parliamentary rights and privileges, which have been, as was pointed out, so long and hard fought for, and which lie at the heart of our democratic freedom. As Feste says to Malvolio:
It would not be beyond the wit of man to devise a remedy for the evil that this Bill seeks to deal with which would avoid this hazard. The Bill provides for a new independent authority, IPSA, to determine and pay the salaries and allowances of Members of Parliament and to propose and police a code of conduct relating to their financial interests. It is true that the new authority's recommendations and proposals are to be subject to the approval of the House of Commons, but that is no more than a right of veto. A right of veto may look good in principle but can well be very difficult to act on and to exercise in practice. The power of proposal and decision should remain with Parliament.
It may be argued that the public anger and distrust of Members of Parliament is so great that the abdication of authority by the House of Commons proposed in this Bill is a necessary part of the remedy if a measure of trust is to be restored. However, as has been said this afternoon, it would be a very high price to pay. Members of Parliament have received a no doubt very salutary shock from the recent exposures of the uses and abuses of the system of allowances and expenses. As the Leader of the House has said, the great majority of them are decent and hardworking people and they will be as keen as anybody else to restore trust. I believe that most of them would not just accept but would positively welcome a framework under which they themselves would be responsible for setting up, approving and abiding by a new system for regulating their allowances and expenses and a new code of conduct relating to their financial interests.
The system will need to provide clarity, scrutiny, transparency and sanctions. It will need to provide the least possible degree of ambiguity and the greatest possible degree of clarity in the structure of rules and entitlements; scrutiny of claims by independent scrutineers paid for but not employed by Parliament; transparency so that claims by and payments to Members can be made known to the public; and sanctions for abusive claims and breaches of the code of conduct.
This system could be administered and supervised by a new House of Commons commission or committee of senior Members of Parliament, none of them from the Front Benches, chosen by the Members of the House of Commons as people of unquestionable and widely respected integrity and trustworthiness. I will not try to name any such people although I am sure they exist: I have no desire to risk damaging their reputations by doing so. This committee would in a
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This committee, acting on the authority of and reporting to the whole House of Commons, would be responsible for framing the code of conduct and the arrangements for allowances and expenses. It would receive reports from those scrutinising claims and payments where rulings by the scrutineers were challenged by the Members concerned, and would make recommendations to the House when it was thought necessary to apply sanctions to individual Members. Such a committee or commission-I suppose that it might be called a Speaker's conference-could also have responsibility for determining and proposing the salaries of Members of the House of Commons, though I entirely see that they might feel the need, and should be able if they wished, to employ the services of a review body or some such body to assist them in that work. Such a system would not infringe the rights and privileges of Parliament. Members of the House of Commons would remain masters in their own house.
By themselves creating and voluntarily accepting such a system, Members would express their determination to restore, maintain and deserve a reputation for trustworthiness, and do so more effectively and convincingly than they would by grudgingly and reluctantly falling in with a system of external discipline imposed on them. It might even be possible to introduce and establish such a system without legislation.
Given the criticisms of the Government's Bill by the Select Committee on the Constitution, and by many others in the House this afternoon, and given that, as the noble and learned Lord, Lord Mayhew, pointed out, legislation passed in haste usually comes quickly to be repented at leisure, we should do well to allow a pause for reflection and reconsideration. The Government should desist from seeking to push their Bill through before the Summer Recess and allow time for other, less unsatisfactory remedies for the admitted deficiencies of the existing arrangements to be worked out and considered. I am sure that, in any but the shortest perspective, the Government will gain greater public credit from taking time to get it right than they will get from trying to force through a measure that is so widely thought to be dangerous and defective.
Lord Jenkin of Roding: My Lords, the noble Lord, Lord Armstrong, addresses the House with all the wisdom and moderation appropriate for a former Cabinet Secretary. If I do not follow him in that regard, perhaps I may be forgiven. I am grateful to the Leader of the House for inviting me yesterday to have a word with her about my views on the Bill-it was her invitation. What I am going to say to the House, I said very firmly to her.
This Bill is one of the most deeply disturbing Bills that I have seen in my 45 years in Parliament. In this, I believe, I am reflecting the views of a great many Members-not only noble Lords in this House but also Members in another place, of all parties. Indeed,
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I entirely understand and recognise the immense pressures that have been put on Members of another place by the hot public anger over the expenses scandal. I must share part of the blame for that. I was a member of a Cabinet which had a recommendation for an increase in the salaries of Members of Parliament; we came to the conclusion that it would be politically easier to increase their expenses, rather than their salaries. With hindsight, it is impossible not to see in this the seeds of the present expenses scandal which has done so much damage not only to the integrity of the system but to the whole political system itself.
I would like to pick up a point made by my noble and learned friend Lord Howe. I am even more concerned by the traumatic loss of confidence in themselves on the part of many Members of another place as a consequence of the disclosures and what they have suffered as a result of the public reaction.
Of course I recognise that all the parties share the objective of restoring public trust in our parliamentary institutions; indeed if our democracy is to survive that is absolutely crucial. We have had in the past a proud tradition of representative self-government. This must continue. But I cannot believe that this Bill, and the new code of conduct that it seeks to enshrine, is the right way to do this. Like others, I am reinforced in this view by the devastating series of reports that have come before us from committees in both Houses in recent days. We are immensely grateful for the work that those committees have done to enable us to take account of their deliberations. They have been referred to already and I do not need to do that again.
What I should refer to, and I read it all, is the evidence given to the Justice Committee in another place by the Clerk in another place, Dr Malcolm Jack, about the effect of the Bill on Article IX of the Bill of Rights, on free speech and on everything on which our free democracy depends. It was rightly said by some wise man that the freedom of speech of Members of Parliament is at the heart of the freedom of speech of everyone else. It is, indeed, at the heart of our constitution.
These are formidable issues which have been raised in these reports, and they need to be debated in full. I am simply repeating what has been said by others, and I hope that the Leader of the House has taken note of them. I note what she said about not moving the Motion regarding the Report and Third Reading, but we do not know what she will put in its place. It would be extremely helpful if she could tell the House this evening what she is now proposing.
Others will be much better equipped than I am to advance the legal and constitutional arguments, but I should like to make just one major point. Not for the first time, the Prime Minister has wholly failed to understand the impact of how his proposals actually look to the people at whom they are aimed. What this Bill seems really to represent, and will be read by many as representing, is that all Members of another place
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What is the impact of the Bill on Members of another place? My noble and learned friend Lord Howe made this point very clearly. Again the Prime Minister has it wrong. Instead of concentrating on restoring the powers of the House of Commons and the health of its procedures-as has already been said, Clause 10 was removed without a single word of debate because the guillotine had fallen-and on Parliament's critical role in holding the Executive to account and scrutinising legislation, free from any threats of repercussions in the courts and elsewhere, this Bill simply reinforces Members' loss of self-confidence, because the Government have not said any of that. MPs are being told that only the threat of the courts interfering in proceedings in Parliament, and the threat of new punishments after summary justice, will keep them in their place. Is anyone surprised that a number of able, long-serving and distinguished Members of another place have decided to call it a day and retire at the next election?
When part of the new panoply of measures is what I can only describe as the vindictive new rule about disclosing not only interests but how much money is earned from them, and how many hours are spent on earning that money-when you see all that-can you blame the Member of Parliament who spoke to me the other day, and who is giving up, when he said that he really was not willing to live in a goldfish bowl?
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