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Secondly, in supporting seven instead of five, paragraph 12 on "Committees" states:
"The IPSA may establish any committees which it considers appropriate",
"Any committee ... may establish one or more sub-committees".
"All members of a committee or sub-committee must be members of the IPSA".
If you have got only five, you will not have many sub-committees; you will have a sub-committee of the whole committee.
Lord Woolf: I echo the point as to age that has just been made by my noble and learned friend Lady Butler-Sloss. But a word of warning; it would not be desirable for someone who holds high judicial office to be on IPSA. We have already referred to the sensitivity of the position of the courts in relation to this legislation, and to have a person who is serving in high judicial office would look rather inappropriate.
Lord Mackay of Clashfern: I support the point made by the noble and learned Lord, Lord Woolf; it would be quite inappropriate for a serving judge to hold the position. I would hope that if the person appointed held or was entitled to hold high judicial office, they would be imbued with a degree of common sense, which is the other requirement the noble Lord had in mind.
Lord Cope of Berkeley: After that row of contributions from persons who have held high judicial office, perhaps I may turn the Committee's attention to some more of this ragbag of small but important points that are being negotiated here. Amendment 19A seeks to delete from paragraph 18(2)(b) of Schedule 1 the words,
"(except as mentioned in sub-paragraph (1) above)".
This section of the Bill attempts to separate administrative functions and regulation functions-paragraph 18(1) defines administrative functions and paragraph 18(2) defines regulation functions-so as to distribute them between the IPSA and its staff. The last line of sub-paragraph (1) states that among the administrative functions is,
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However, I cannot see that IPSA has a duty under Clause 5 to maintain the register, but it does to publish. The clause says that it has to prepare a code and goes into a lot of particulars about how it is to go about that and how the code is to be approved and so on. It also says that the code must require members to register the information, but it does not say that IPSA has to keep the register. It is fairly obvious that it will keep the register, which is part of its whole purpose, but the drafting might have become a little confused there. It is worth another look.
4.45 pm
The next of my amendments in the group, Amendment 19D, relates to funding and how the Speaker's committee has to review its estimate each year. Paragraph 22(4) of Schedule 1 states:
"If it is not satisfied, the Committee must make such modifications as it considers necessary to achieve consistency".
But it does not say consistency with what. Is it consistency with the previous year-accountants do like to ask, "How does that compare with the same period last year?"-or is it consistency with some other bodies or quangos, or is it consistency with something else: for example, Treasury rules? "To achieve consistency" does not seem enough. Perhaps it is internal consistency between different parts of the estimate. It is not clear with what consistency in mind the committee has to propose modifications. In fact, the provision limits the committee to making modifications which achieve consistency with something or other, but not modifications that achieve inconsistency. Perhaps that is all it needs, but the drafting is not very clear.
Amendment 19E raises a very small point. The Bill states that,
I thought that "consider any advice given" might be better, but the difference in meaning is very slight and I would not press it.
Amendment 20A is concerned with what the Commissioner for Parliamentary Investigations will be paid. The Bill says that terms and conditions will be determined by the Speaker. I suggest that the Speaker should not be left entirely untrammelled in this matter, but that we should insert,
after "determined by the Speaker".
Lord Borrie: The noble Lord, Lord Cope of Berkeley, referred to the funding paragraph in the schedule, paragraph 22, and criticised sub-paragraph (4), which states:
"If it is not satisfied, the Committee must make such modifications as it considers necessary to achieve consistency".
He asked, "Consistent with what?". I read it as being the previous sub-paragraph, which states:
"The Committee must review the estimate and decide whether it is satisfied that the estimate is consistent with the efficient and cost-effective discharge by the IPSA of its functions".
Lord Cope of Berkeley: The noble Lord is a lawyer; I am not. That may be the correct interpretation, but it seemed to me odd when I read it.
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Lord Kirkwood of Kirkhope: Perhaps I may add to the fine print of the important points raised in Amendment 9, in relation to the numbers that affect the timing of the appointment of IPSA. I assume that the target date for the body taking effect is the beginning of the financial year in 2010, which is a relatively short time. If it is not to take effect and take control of the functions in the Bill by the beginning of the financial year 2010, there will be a very unfortunate interregnum. I would like to hear it confirmed, just so that we all know where we are, that the target date for the start of this body is 1 April 2010. If that is the case and we are thinking about appointing members to IPSA on the basis of "fair and open competition" the Appointments Commission would surely have to be involved. The full panoply of the statutory rules and regulations that it applies to public appointments is necessary to be able to say with certainty that four or five of the seven members-however many they may be-are appointed on merit on the basis of fair and open competition. We would need to use its good offices. In that case, some of the important points that have been raised about the small pool of people from which these candidates can be drawn become even more important. There will be real problems in getting this organisation up and running, with its interim chairman, full-time chairman and chief executive, in time for it to start at the beginning of the financial year 2010.
Lord Campbell-Savours: In terms of considering numbers, I think that we might be a little premature. We are not altogether clear what IPSA's final responsibilities will be. There are many people in the Commons who still believe that by the time this Bill has cleared all its stages, IPSA will be little more than an outsourced fees office for the House of Commons. I think it is highly unlikely that we will want a top-heavy organisation, so perhaps we might consider the question of size a little later in the Bill's proceedings.
Lord Bach: There are a number of amendments to deal with in this group. The noble Lord, Lord Kirkwood, asked when IPSA will be set up. The answer is not necessarily particularly helpful, but it will be set up as soon as is practicable after Royal Assent. That does not necessarily mean 1 April 2010. His next question will probably be to ask when members of IPSA will be appointed. The answer is that this, too, will be done as soon as is practicable after Royal Assent. However, it is important that IPSA is set up as quickly as possible.
I shall be asking the noble Lord, Lord Shutt, to withdraw his amendment in due course but before doing so I shall go through the other amendments in his name and explain my reasons. We have made it clear that these measures apply to the House of Commons only-that is the starting point. Some of the amendments deal with the financing arrangements for the body. We all know that financial matters are really for the Commons and not for this House. The other place is content with these proposals. There was, quite rightly, a good debate on these proposals in this House and in the other place. However, following a number of technical amendments made in the other place, the proposals were agreed without a Division.
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On the specific proposals, we believe that to increase the number of members of IPSA, with the consequential amendments that would flow from that, would add to its costs at the same time as the Committee is agreeing to reduce its functions. The public need to be assured that our response to the recent problems is proportionate and efficient, as well as effective. I note what the noble Lord says about the need to ensure that there is always a good number of members present at meetings and the resulting need to have some spare members. A body has to be designed with its functions in mind. This body will have functions in relation to a group of people which is limited in number. The issues it may have to deal with may be complex, and they will certainly be high profile, but they will arise only in relation to that limited group. IPSA will need enough members to enable it to carry out its functions properly, but that consideration must be balanced against the need for it to be responsive. A body as large as eight is likely to become more inefficient and more unwieldy, although I take the noble Baroness's second point about committees and sub-committees.
Amendments 10 and 11 reverse a decision taken by the other place, which decided that the serving holder of high judicial office should not be a member of IPSA but that it wanted someone who had experience at that level. The point made was that a serving member of the judiciary was unlikely to be able to devote the required time to the functions. I want to add to that; I agree with the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern, that it would be a mistake to have a serving judge sitting on IPSA, not just because they are busy people in any event but because in principle it would not be appropriate.
The number of senior judiciary is deliberately limited by legislation, and it was thought that provisions such as this would only increase the demand on senior judiciary. We therefore agreed to amend the Bill to remove the possibility that a serving judge could be a member of IPSA, and we think that that is the right decision. I am happy to tell the noble and learned Baroness, Lady Butler-Sloss, that there is no age limit at all-all retired judges who are interested, please take note.
It is implicit in paragraph 1(5) that the parliamentary member should have recent parliamentary experience. We do not feel that it is necessary to spell this out in paragraph 1(4) as well. We can see why the noble Lord seeks to ensure that the member must have recent experience, but it does not seem wise to limit the provision in that way. There may be occasions when the most suitable candidate has not been a Member of the other place for six years, and we would not wish them to be disqualified just for that; we want to rely on the selection of the most meritorious candidate.
I take the point that the noble Lord opposite made about political bias. One hopes that whoever is chosen will not show any such bias and it is unlikely that they would, but there is no reason why there should not be more than one ex-Member of Parliament on the body; the Bill says that there has to be at least one member who has recently been a Member of the House.
I know that these were probing amendments, but we find it strange that the noble Lord, Lord Shutt, should wish to remove a requirement that the members
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The noble Lord appeared prepared to see IPSA not acting efficiently and cost-effectively. I am sorry, that is the wrong way of putting it; that would be on the basis that it was not a probing amendment, but of course it is. Rather, he wanted to raise that topic in Committee today, and I shall give him an answer. The requirement, not necessarily in the Bill, would enable IPSA to borrow money, and he asks why we have reached the decisions that we have on this. It is because the provisions are requirements that are found elsewhere for bodies of this kind. It is surely not objectionable that, in carrying out its functions, IPSA must do so with regard to the costs that it will incur and the efficiency with which it will achieve outcomes. Because it will be a small body, however, we do not see any need for it to be able to borrow money.
Lastly, the provision allowing IPSA to retain money it receives and apply it to its functions is also a standard, sensible provision. IPSA may receive repayments of money that has been paid out under the allowance scheme in error. In many cases, that may be dealt with by setting the overpayment off against the next payment due, but that might not always be the case. Instead of requiring that the payments are returned to the Consolidated Fund, the Bill provides that IPSA can keep the payments and use them to pay out allowances to other Members of Parliament.
5 pm
On the amendments of the noble Lord, Lord Cope of Berkeley, I have come to a view about Amendment 18A, about which I spoke a little prematurely following his lead in the previous group. I prefer Amendment 19, so if the noble Lord would be kind enough to withdraw his amendment in due course, I would be grateful.
Lord Mayhew of Twysden: I return to the Minister's point, which he made off the cuff, understandably, and without looking at his text. He said that in his recollection the schedule says that at least one of the members of IPSA must be a person who has been but is no longer a Member of the House of Commons, it actually says "one of the members". I suppose that it is intended to make a distinction with the preceding sub-paragraphs, which say that "at least" one of the members must be a person who has held high judicial office, and that "at least" one of the members must be a person who is qualified under Schedule 3, and so on. A distinction seems to be intended there, and the Minister might like to look at that and clear it up when convenient.
Lord Bach: This may, again, be a matter of drafting. I have just been advised that it does mean a minimum of one of the members, so the phrase "at least"-which appears, as the noble and learned Lord rightly points
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Lord Woolf: It might be convenient if I mention one more matter at this stage; I recognise that this is not necessarily a conventional way of doing so, because it is a rather general point. The Minister emphasised in what he said that cost is a consideration which should be taken into account with regard to IPSA. We were also talking earlier about having two commissioners in this field in the other place. If the matter is being looked at again, I urge the Minister to take back for consideration, now that the Bill has been slimmed down, the idea that there might be considerable advantages in not having two commissioners, for the good reason that the existing commissioner has been the subject of a decision of the Court of Appeal-which I confess was presided over by me-to the effect that he is not subject to judicial review in exercising his functions. I apprehend from what has been said in this Committee that that would be looked at with favour.
Another reason is that, from the limited experience I had when I was chairman of the sub-committee in this House dealing with Lords' interests, the person in the position of the commissioner will, over time, develop expertise as a result of exercising his office. There will always be a subjective quality to that in these matters. The one thing that I would have thought that the other place would not want is the two commissioners that they have created coming to different decisions in this area.
There may be a very good reason of which I am simply unaware why it was felt necessary to have two commissioners. However, it seems to somebody wishing to take forward the idea of efficient, effective and economic operation of this new body, and when one looks at a Bill which is now so different from what it was, that something is being created that might be over-egging the pudding, creating an undesirable complication with conflicts of jurisdiction over the same issues.
Lord Bach: I am, as always, very grateful to the noble and learned Lord for his observations. Obviously they have been heard not just by me but by my noble friend the Leader of the House. I will take away the noble and learned Lord's suggestion and comments and come back in due course with an answer for him.
Lord Brooke of Sutton Mandeville: Would the Minister give way on another point? It may be regarded as the sort of wild contingency that would appeal to AP Herbert. It may also be the case that those in your Lordships' House today who have held high judicial office would say that it was impossible for any of them ever to have previously been a Member of Parliament. However, it seems possible that somebody could satisfy both sub-paragraphs (2) and (4) of paragraph 1. In those circumstances, would that one person be sufficient to fulfil both obligations?
Lord Bach: The noble Lord has got the better of me: I have no clue as to the answer to his question, but I think that I know people who could find out for me. I am grateful to the noble Lord.
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I return to attempting to deal with the amendments tabled by the noble Lord, Lord Cope of Berkeley. On Amendment 19A, we understand the desire of the noble Lord and the Committee not to have superfluous wording in Acts of Parliament. However, we do not think that these words are superfluous. It is important to make it clear that there is no contradiction between the provisions of paragraph 18(1), which sets out the administrative functions of IPSA in relation to the Register of Members' Interests, and the provisions of paragraph 18(2), which sets out the regulatory functions in relation to the code as a whole. It is helpful to make clear the distinction by including the words that the noble Lord objects to. On that basis, I ask him to consider not pressing that amendment.
As far as Amendment 19D is concerned, I think that my noble friend Lord Borrie dealt with the point about consistency, so I will rely on his argument for that.
Lord Jenkin of Roding: I have listened with great care and am full of admiration for the Minister who is answering and the noble Lords who have asked these questions. I wonder whether the aim of Amendment 19D to paragraph 22(4) could be achieved with the words "considers necessary to achieve such consistency". Then it would clearly refer back to the previous sub-paragraph. I think that that is what the Bill is supposed to mean.
Lord Bach: I am very grateful to the noble Lord. We will take that away and consider that possible minor, but helpful, amendment.
Amendment 19E would, if accepted, weaken the regard that the Speaker's Committee should have to the advice of the Treasury in finalising the estimate. The committee is not required to accept the advice in any event. It can reject it but must prepare a statement of reasons if it does so. I point out that the wording of this part of the schedule mirrors that which applies to the Electoral Commission. I remind the noble Lord, Lord Cope, that the other place considered these provisions; there was an extended debate on Schedule 1. The amendments also deal with the funding of a public body and with an estimate that will be a parliamentary estimate, not a departmental estimate. Without for a moment suggesting that it is not for this Committee today to debate these matters, I think that this is one of those matters that are-it could be argued-pre-eminently House of Commons business.
Finally, Amendment 20A would require the Speaker to consult the Senior Salaries Review Body in setting the terms and conditions of the independent commissioner. There is no proposal for a similar amendment to the identical provision in relation to the members of IPSA. We are not convinced that the Speaker should consult the Senior Salaries Review Body. It has nothing to do with the work of the independent commissioner. We think that the Speaker is perfectly capable of taking advice about other comparable positions without specifying it in the Bill, so we do not see the case for making a specific reference to the SSRB in this case. Clearly, terms and conditions of employment go well beyond salaries.
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Lord Shutt of Greetland: I am grateful to the Minister for his response to the amendments standing in my name and that of the noble Baroness, Lady Hamwee. The Minister's fundamental point concerned the expense of increasing the body's membership by three people. I would not have thought that we were talking about serious money in that regard, particularly bearing in mind the importance of the issue.
I listened to the exchanges that took place on former MPs. It strikes me that all five of these people could be former MPs. I see no reference to qualifications that the chairman may or may not hold. Certainly, some former MPs have held high judicial office and I am sure that some former MPs have been auditors. All of them could be former MPs. That is slightly worrying in the sense that MPs are saying that they want to distance themselves from this process. I have difficulty with the issue of the sovereignty of Parliament, but they are saying that they want to distance themselves from these matters and put them in the hands of other people. I am not convinced that the public would consider that the body was sufficiently distanced from the process if all its members were former MPs. The Minister may care to think about that a little more. Nevertheless, on the basis of the answer that I have received today, I beg leave to withdraw the amendment.
Amendments 10 to 18A not moved.
19: Schedule 1, page 13, line 36, leave out "ensure that" and insert "comply with sub-paragraph (2)"
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