| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
While the debate has been lively, I hope and think that we can agree on the key principles that are central to the Bill. The current arrangements for administering MPs' allowances must be replaced. We must respond to the public's legitimate concerns. There should be an independent body to administer and oversee MPs' allowances and the registration of financial interests, and any new system of regulation should be independent, transparent and robust. I have been listening and I have acted accordingly.
Lord Lester of Herne Hill: I am grateful to the noble Baroness. I have to say that I am sorry that that statement has been made before I could explain why Amendment 1, far from clarifying the position, actually creates some confusion and why it is unnecessary. I had better say that, even though the Government have indicated that they will accept the amendment. I was not able to be here yesterday, but let me say at the beginning how sad I am that that most noble and most learned Lord and friend, Lord Kingsland, is not here today to deal with this and how gallantly the noble Lord, Lord Strathclyde, has stepped in, better than most lawyers.
The noble Lord, Lord Strathclyde, said that he thought that the freedoms of Parliament had been casually thrown into doubt. I do not think that that is
14 July 2009 : Column 1050
The present law is perfectly clear and any suggestion that the courts might need Amendment 1 in order to keep off the grass of Parliament's lawns is totally wrong. The great case that decided this, in which I appeared on one side, was Pepper v Hart. As we have no constitutional legal adviser and the Law Officers are not here, I remind your Lordships of what was made quite clear in that case. The noble and learned Lord, Lord Browne-Wilkinson, said:
"Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected Members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech). But even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word 'question' which the Attorney-General urges".
"In my judgment, the plain meaning of Article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal, for what they said, and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule"-
this is the rule against Hansard being used as an aid to statutory interpretation-
He then said this, which is very important in the context of the Bill:
"Moreover, the Attorney-General's contentions are inconsistent with the practice which has developed over a number of years in cases of judicial review. In such cases Hansard has frequently been referred to with a view to ascertaining whether a statutory power has been improperly exercised for an alien purpose or in a wholly unreasonable manner".
He cited as an example the case of Brind, where Hansard was used for that purpose in judicial review proceedings. In conclusion he explained why there was no threat to Article IX. The case of Prebble, which I shall not bore the Committee with, was a Privy Council decision where the law was made even clearer.
The judges have made quite clear the boundaries of Article IX and the important ways in which they must respect the laws of Parliament and not intrude. I still await to be told by someone what it is about this Bill-especially after the government amendments described by the Leader of the House-that will put any of that in jeopardy. There is the matter of fairness, which we will attend to later, but that is not covered in the amendment. We are rushing to accept the amendment and to get the Bill through. That happened once before, with a previous Government, when we rushed to amend the Defamation Act to enable Neil Hamilton
14 July 2009 : Column 1051
Lord Lloyd of Berwick: I fail to understand the noble Lord's position. He says that the amendment is not necessary, but is he saying that there is any harm in it?
Lord Lester of Herne Hill: Any harm would be, if in future, because the amendment refers only to this Bill, it were to be interpreted in some way as glossing the position so far as other Bills are concerned. That is the only harm that could be done. The main case against it is that it is wholly unnecessary and that the courts have made the position absolutely clear.
Lord Peston: If we are being told-
Lord Campbell of Alloway: My name is down-
The Minister of State, Department of Energy and Climate Change (Lord Hunt of Kings Heath): If we hear my noble friend, who I think was making an intervention, I am sure that we can then move to the noble Lord when the noble Lord, Lord Lester, has responded.
Lord Peston: The noble Lord leaves me completely bewildered. Is he saying, after the Leader of the Official Opposition has moved the amendment and the Leader of the House has accepted it, that he will demonstrate the wisdom that the Liberal Democrats showed last Wednesday and divide the Committee and vote against it? That would break an all-time record for irrational behaviour in the House of Lords.
Lord Lester of Herne Hill: I do not think that this is an occasion for forensic sarcasm. I am simply saying that Parliament should not legislate in vain and that this is not a necessary amendment, because the courts, by their case law, have shown perfectly well the need to respect Article IX of the Bill of Rights. Since no one has yet explained what threat the Bill poses to Article IX, I am saying that those who support the amendment on the government or the Conservative side need simply to inform the Committee of the problem about Article IX in the context of the Bill, other than that of fairness. That is all. Parliament is entitled to have that question answered.
Lord Foulkes of Cumnock: I agree with what the noble Lord, Lord Lester, has said, except his conclusion, because if he concludes that the amendment will do no harm, even though it is not necessary, surely he will not vote against it.
Lord Lester of Herne Hill: I would not dream of voting against it. All I am saying is that we are a legislative body looking at a piece of legislation in a hurry and that someone needs to explain to the Committee what the problem is. I have not heard anybody do so. The late Lord Kingsland, in a marvellous speech, did not identify the problem. I certainly would not oppose the amendment, but it would be good if Parliament were to be informed by somebody of exactly what the problem is about Article IX.
14 July 2009 : Column 1052
Lord Campbell of Alloway: As I support the amendment, I am relieved that noble Lords are equally as bewildered as me. I simply do not begin to understand the logic, the sense or the direction of the speech of the noble Lord, Lord Lester.
I am most grateful to the Leader of the House for saying that she accepts the amendment. It goes to the essence and heart of the Bill. It was drafted by Lord Kingsland and bears the mark of his authority.
It is a purpose amendment, related to Amendment 2, also drafted by him, which goes to the essence and purpose of the Bill. That is nothing to which the noble Lord, Lord Lester of Herne Hill, has referred. The purpose of the Bill is to enable another place to devise its requisite reforms and implement its domestic procedures as to conduct of honourable Members by virtue of the constitutional freedoms of both Houses under the Bill of Rights. That is the essence of it.
As the noble Baroness accepts it, I can see no reason why, if the Bill is related only to that purpose, it should not be accepted by the House. But it is not. That is the trouble-hence the legal bewilderment. I am a lawyer, and I very often get bewildered, but I have never been as bewildered as I am today. One has to accept the fundamental concept that the Bill of Rights gives parliamentary freedoms to both Houses and that if that is slighted by this Bill, it would set an evil precedent that could well affect this House in time to come. We can forget about sunset clauses-it is nothing to do with that observation.
3.30 pm
Second Reading enabled a series of amendments to be tabled-I think quite a few are in the name of the noble Lord, Lord Lester-which inhibited such entitlement by proposing statutory ordinance which had to be accepted by another place, such as resort to courts of law, appeals, and one thing and another, which are without the constitutional provision. If one slights this provision, this is dealt with in the related purpose amendment in the name of my noble friend, Amendment 2. In time to come, it will affect, or could affect, this House.
I have only a little more to say, and it is not on the basis of a legal argument in the Appellate Committee. This is not the Supreme Court, thanks heavens. The Bill was presented as a sort of political placebo, without consultation on any aspect of constitutional reform. It is not for me to criticise, but that is a fact.
The Bill should pass but-in a sense this has been said by my noble friend Lord Strathclyde-only if its purpose is limited to acknowledgement and respect of the freedoms of the other place and to enable it to do what it wishes after its own fashion.
Lord Jenkin of Roding: The four amendments grouped with Amendment 1 are in my name. It prompts me to ask the noble Baroness some questions. Let me say straight away that I am delighted that she has said that she will accept Amendment 1 in the name of my noble friends Lord Strathclyde and Lord Henley. I am sure that that will go a long way to meeting the anxieties which were so eloquently voiced at Second Reading.
14 July 2009 : Column 1053
My four amendments are designed to make clear that various activities that will be carried out under the Bill will be regarded as proceedings in Parliament and will therefore qualify for the protection that is offered by the Bill of Rights for such proceedings. They concern the question of the code, the register of interests, the question of investigation under Clause 6 and, although I realise that the noble Baroness has already indicated that she is not going to move Clause 7, there were items in that clause that would have needed to have been subject to the same protection.
One of the points that is so important to make for the public is that when one asks for privilege protection for Parliament, for both Houses, one is trying not to secure concealment but to make certain that none of these matters can be justiciable in the courts.
Lord Campbell of Alloway: Hear, hear.
Lord Jenkin of Roding: A Member of Parliament should be responsible to his constituents, not to the courts, a point that was made by many noble Lords at Second Reading. Will IPSA decisions be justiciable, will they be protected by Clause 1 or do we need the protection of one or other of these amendments? It is a question of the code of practice.
If they remain justiciable in the courts, Parliament will have to answer to the courts. At Second Reading, the noble and learned Lord, Lord Woolf, eloquently made it clear that this is a feature of the separation of powers between Parliament and the courts that so far the courts have been extremely reluctant to breach. They may have to look at the boundaries of a matter, but, once it has been decided as a matter for Parliament, it is not a matter for the courts. I am not clear whether the amendment that I understand the noble Baroness is going to accept will cover these matters.
Where Clause 6 deals with investigations, it says that an inquiry can be launched in response to a complaint by an individual. It is not difficult to imagine a case where a thoroughly disgruntled member of the public, dissatisfied with what is happening under the Bill, may wish to take the matter to court. I want to be absolutely assured that there is no possibility of a member of the public-
Lord Jenkin of Roding: May I just finish my sentence? I want to be assured that there is no possibility of a member of the public launching a case for judicial review on the grounds that IPSA, the commissioner, or the Committee for Standards and Privileges have not done their job properly. That must be a matter for the House of Commons. If the noble Baroness can give-
Lord Jenkin of Roding: I am sorry; everyone wants to get on. If the noble Baroness can give me that assurance, despite what my noble friend said about supporting these four amendments, I would not believe it necessary to press them. However, if the effect of accepting Amendment 1 will be to leave these new institutions still able to be taken to court by a member
14 July 2009 : Column 1054
In the House of Commons debate, which I will not bother to quote, her right honourable friend Jack Straw, in response to a similar amendment to one of these, said that the Government had not closed their minds to it. What the noble Baroness said some moments ago in response to my noble friend Lord Strathclyde appears to mean that they really had not closed their minds to it and are now minded to accept that amendment. I would like to see further assurances, though, that nothing that is done under the Bill by these parliamentary institutions is likely to result in a judicial review and the matter coming before the courts.
Lord Campbell-Savours: Briefly, I have spent much of my time over the past week reading through the Bill. I firmly endorse the point made by the noble Lord, Lord Jenkin of Roding. The issue of whether areas of the Bill are justiciable is critical to the debates that will now take place. The Bill is effectively in two parts; the first dealing with the independence of the Parliamentary Standards Authority and the second with the question of offences. The Government's handling of the first section of the Bill must depend very much on answers that my noble friend has given. While I wholeheartedly accept, as does the whole Committee, that the Government have taken the decision to accept Amendment 1, this residual area must be clarified before we proceed.
The Earl of Onslow: Briefly, all my House of Commons friends individually tell me that the morale of that House is absolutely terrible. They are shell shocked and shattered. They have been spat on by their constituents and ghastly things have happened to them. The vast majority of them are men of principle, and that applies to both sides of the House of Commons. They go into Parliament for service to their country. It is up to us, who are not as yet affected-and I hope we never will be-by the current vitriol, to try to help to give the House of the Commons back its self respect. In doing so, we must stick up for its Members' rights, because they are at the moment perhaps feeling a little frightened so to do.
Lord Foulkes of Cumnock: I find it strange that we are continuing this debate. I listened carefully to the noble Lord, Lord Jenkin, who was asking for lots of assurances on particular parts. I respect him, and respect even more my noble friend Lord Campbell-Savours. But surely a new clause right at the start saying "Nothing in this Act"-"nothing" is plain English; it could not be plainer-includes everything that the noble Lord, Lord Jenkin, adumbrated. Each thing is excluded because it says here "Nothing in this Act". I would have thought that we could get on to Clause 2 as quickly as possible.
Lord Elystan-Morgan: I raise a simple point. We always look at the Bill of Rights as something that created a massive, monumental right. It did not. It did not create anything. It declared rights that were already there, inherent in the very institution of Parliament. Indeed, the Bill of Rights is only one manifestation of
14 July 2009 : Column 1055
In 1840, Parliament passed the Parliamentary Papers Act, after Stockdale v Hansard. That in no way limited it rights; it merely declared rights that would have been there in any event, even if that declaratory instrument had not been made. Since it seems that those rights may well be wider than the Bill of Rights, I ask with great humility that the Government-I congratulate the Government; the noble Baroness the Leader of the House has placed the whole House of Lords in her debt through her decision on this matter-consider that the reference should be not just to the Bill of Rights but also to the parliamentary privileges of which the Bill of Rights is a manifestation.
Lord Lester of Herne Hill: I will clarify one point. What noble Lords have been saying is completely right: the issue relates to judicial review. The noble Baroness the Leader of the House made it clear at Second Reading, at col. 947 of Hansard, not only that there is no infringement of Article IX in the Bill but that a court faced with a judicial review would not be able to consider proceedings in Parliament because that would not be possible under Article IX. I completely agree with her.
However, there could of course be judicial review. If I were to go on, I would explain how judicial review quite often arises in cases involving Article IX. Accepting Amendment 1-although it clearly says that nothing in the Act affects Article IX-does not resolve the underlying problems. I was attempting to explain that the courts have been resolving those problems clearly, and in a way that we should respect.
3.45 pm
Lord Higgins: For some 10 years, until the last election, Lord Kingsland and I shared a very small room just off the Peers' Lobby. For much of that time I had grave concerns about his health but he fought back valiantly and continued to make a major contribution in the House of Lords. Perhaps I might therefore be allowed to say that, in 45 years' experience in both Houses of Parliament, he was among the finest debaters that I heard in either Chamber. He will be greatly missed not only today but in the future.
I am sure we all very much welcome the amendment moved by my noble friend the Leader of the Opposition and its acceptance by the Leader of the House. This, in effect, provides a safety net, but safety nets have holes in them. It would be quite wrong for us to assume that we can go ahead and not deal with the detailed provisions in the Bill, which raise serious questions about its relationship to the Bill of Rights, without clearing up those particular clauses. We cannot simply leave a lot of rubbish all over the place and say, at the end of the day, "Don't worry-the courts will have to take account of this safety net". That would be a very bad way of doing it. Who knows what cunning judicial arguments might be put forward, based on the fact that we have left the matter in an uncertain state in the Bill?
14 July 2009 : Column 1056
The noble Baroness has been immensely helpful throughout, but we are still left with the view expressed by the Clerk of the Parliaments in his evidence, that there are main provisions in the Bill which-by leaving open the possibility of judicial examination in the House's internal rules-could threaten the principle of parliamentary privilege. It is quite clear that that is still the situation. The noble Baroness kindly wrote us a letter, to which she referred, on 13 July to assure us that, quite apart from the safety net, the proposals that she will now make will deal with the matter. I have some difficulty in understanding precisely what she has in mind. It is quite clear, she says, that:
"Under the amendments, the IPSA will be responsible for determining the procedures",
but not for "individual cases".
| Next Section | Back to Table of Contents | Lords Hansard Home Page |