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5.15 pm
Lord Bach: This group of amendments deals with the changes to the investigation and enforcement regime that the Government have brought forward. During the passage of the Bill, there has been considerable concern about the impact of its provisions on parliamentary privilege, particularly each House's right to freedom of speech and exclusive cognisance of its own affairs. As has been said, the events disclosed by the Daily Telegraph in relation to the other place have made it impossible to continue with the old system of self-regulation. The public will clearly no longer tolerate a regime where the other place sets, administers and investigates breaches of its own allowances and the rules on the registration of financial interests. I think that that is also the view of this Committee. Those powers do not deal with matters that are presently privileged.
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We have always recognised, however, that it is a different question in relation to enforcement. The Bill as originally drafted took a particular approach in trying to steer the narrow line between enabling the commissioner and IPSA to do their work and not infringing privilege. That approach did not find favour in the other place and your Lordships remain concerned about how it is handled in the Bill, as it was sent up here by the other place. We remain of the view that many of the concerns expressed, particularly about the extent to which the courts would decide that they now had the right or duty to inquire into matters that would previously have been regarded as privileged, were to an extent exaggerated, but we recognise that those concerns are real.
The package of measures in the government amendments in this group-although there are also opposition amendments in the group, to which I shall reply after they have been spoken to-responds to those concerns by removing any role for IPSA in the enforcement of the new allowances regime or the code of conduct on financial interests in individual cases. IPSA will remain responsible for setting the allowances regime and for the payment of MPs' salaries and allowances. It will be responsible for setting the code of conduct on financial interests and for administering the register of financial interests. IPSA will retain responsibility for the procedures under which alleged breaches of the financial rules can be investigated. Those, we think, are the core principles of independent oversight and regulation of MPs' financial affairs which the public ask for and which we have promised.
An independent statutory commissioner will also be responsible for investigating complaints that MPs have breached the rules of the allowances regime or the rules on registration of interests. Those arrangements remain unchanged. The amendments make changes in what happens to the outcome of the commissioner's investigations. Amendment 43A provides that the commissioner must refer his or her findings to the Committee on Standards and Privileges, rather than to IPSA. The amendment redrafts what was inserted in the other place as subsection (5), but maintains its effect in allowing minor cases to be settled by the commissioner without reference to the committee, provided that any general conditions fixed by IPSA are met and the Member acknowledges the error and agrees to repay the overpayment or correct the entry in the register, as appropriate.
New subsection (5C) is a revised approach to the duty of the MP to provide information to the commissioner, which was included in subsection (3) of Clause 6 and for which the sanctions were previously covered in subsections (5) and (6) of Clause 7. Rather than setting out the duty on the MP to provide information, the commissioner will be able to report a finding to the Committee on Standards and Privileges if the Member of Parliament chooses not to co-operate.
The other change to which I wish to draw the Committee's attention are the additions to the requirement for the procedures that IPSA must draw up. Following concerns expressed by the noble Lord, Lord Lester of Herne Hill, and other noble Lords, we propose including a specific right for Members of Parliament who are subject to an investigation to be heard in person by the
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I have not gone through in detail the individual impact of each element of this group of government amendments. I hope that what I have said will find favour with the Committee. Most of the amendments that I have not referred to are consequential on the main government amendments in the group. I beg to move.
Lord Goodhart: I will speak to the amendments in this very large group that are in my name and those of my noble friends. The government amendments to Clause 6 in this group make a considerable improvement to the clause and we therefore support them. It was wrong that IPSA, the body that makes the code, should also have been responsible for its enforcement, and having IPSA intervening between the commissioner and the Committee on Standards and Privileges could have caused serious delays and additional expense. Therefore, we welcome Amendment 19B and the others tabled by the Government. In referring to "the commissioner", I am of course referring to the Commissioner for Parliamentary Investigations and not the commissioner for the commissioning of parliamentary commissions, or any other commissioner who might be floating around.
Amendment 33 to Clause 4, in the names of my noble friends Lord Shutt and Lady Hamwee, provides that IPSA must review its determinations that a claim should be wholly or partly refused. The amendment states that IPSA must decide on the process for reviewing its determination and should submit the process that it has decided on to the Speaker's Committee. It is desirable that the process should be given the widest possible circulation and it would be appropriate to do that by the method suggested.
Amendment 43 proposes that IPSA should give guidance to Members on the records that they should keep. Again, that is a sensible course, which would be of assistance to Members.
Amendments 43B and 43D are probing amendments. Government amendment 43A provides, in proposed subsections (5)(b) and (5B)(c) to Clause 6, that conditions should be specified by IPSA. It is not clear what these conditions are and how and when they are to be imposed. I imagine that they are not to be part of the code itself. Are they a new free-standing power? If so, how is that power to be exercised? Are the conditions to be of general application or could they be imposed for a single investigation? The most reasonable formula is to require any condition imposed under the new government amendments to be made as part of the procedures under existing Clause 6(6). In this case, it should be made clear that the conditions are made as part of the procedure that will be determined by IPSA under that subsection. If that is not the basis for imposing the conditions, a new power is being given to IPSA and the basis and limitation of that power must be explained.
Amendment 48 has been overtaken by the government amendments, which we will support. There remains the problem that there is no provision either in the Bill
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I turn to Amendments 50, 51 and 52. Clause 8(6) refers to investigations. It states:
"The procedures must, in particular, provide a member who is the subject of an investigation or complaint with an opportunity-
(a) to make representations to the Commissioner about the investigation or complaint;
(b) to make representations to the IPSA".
The complaint is relevant only as one of the possible triggers for investigation under Clause 6(2)(d). Is it intended that, where the complaint is made by an individual under Clause 6(2)(d) but not in other circumstances, Members will be able to make representations to the commissioner that no investigation should be started and will then be able to make representations again when the investigations are carried out? That is not in itself unreasonable but, if so, why not allow pre-investigation representations in cases triggered by Clause 6(2)(a), which concerns investigations on the commissioner's initiative, or those triggered by subsection (2)(c) concerning investigations at the request of IPSA? On the other hand, should it be left for the commissioner to decide whether to proceed without the Member who is proposed for investigation necessarily having a right to make representations at that stage?
Finally, we welcome the exclusion of Clause 7 from the Bill. We think that that is an important step forward. Consequently, the Committee will no doubt be glad to hear that I shall not speak to Amendments 54, 55, 57, 64, 65, 68 or 69, which are tabled in my name, although my noble friend Lord Tyler will speak to Amendment 75.
Lord Jenkin of Roding: It may be appropriate for me to follow the noble Lord, Lord Goodhart, although-and in this there is no sense of criticism of him-I shall be somewhat shorter. I simply want to talk about what was nearly his penultimate point concerning the reference in government Amendment 43A to "such other conditions".
I was struck that at this stage it is impossible for the commissioner or IPSA to define all the circumstances in which they will find themselves becoming involved. Any reader of the Daily Telegraph would have recognised that there was an almost infinite variety of circumstances in which they might find themselves involved. Therefore, I do not think that it is unreasonable that in this clause the commissioner may have regard to,
That is referred to in proposed new subsection (5)(b) in Amendment 43A and, similarly, in relation to financial interests, proposed new subsection (5B)(c). However, it seems important that these provisions should not be absolutely at large. Therefore, I suggest that it would be an improvement if the word "reasonable" were added before the word "conditions" in both places, so as to read "such reasonable conditions". The insertion of that word would simply act as a signal that, if the commissioner and IPSA found themselves with a case
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Going back to what I said earlier in the debate on Amendment 1, which the noble Baroness the Leader of the House was so readily willing to look at again, if we establish that none of these activities is justiciable, then it will not be for a court to decide whether something is reasonable. Of course, if a court were looking at the case, it would have to take that into account. If, in the end, the noble Baroness does not accept my amendments which were grouped with my noble friend's Amendment 1, then it is conceivable that this could be justiciable, in which case the word "reasonable" would be an indication to the court that it would have to apply some judgment as to whether the conditions were or were not reasonable. I hope that we will not reach that position and that we will be able to get to the point where the court is not involved with any of these matters-a view held, I think, by a large number of noble Lords in all parts of the House. However, we have not got there yet, and I hope that the Government will be able to accept the insertion of the word "reasonable".
5.30 pm
Baroness Butler-Sloss: In order to try to make Amendment 43A and Clause 6 work, I have one question for the Minister and some concern about what remains of Clause 6. As the commissioner will be referring his findings to the House of Commons Committee on Standards and Privileges, am I right in thinking that it will then be a matter for that committee, with complete freedom, to make such decisions as it thinks appropriate to deal with a referral from the commissioner? This lies uncomfortably with a considerable part of Clause 6, because Clause 6 seems to do two separate things: one is that the commissioner investigates and the other is that IPSA takes a role. I get the impression that Amendment 43A is taking over. If I am right, then you would not require the commissioner to report to IPSA under subsection (4) and I would assume that subsections (7) and (8) would be irrelevant because those are the jobs of IPSA and not of the commissioner. It looks to me as though most of Clause 6 should come out and that the duties of the commissioner should take over largely from the duties of IPSA.
The Earl of Onslow: Perhaps the noble Lord on the Front Bench can help me. Unlike some other noble Lords, I am somewhat clueless, a word frequently used by the Front Bench opposite. Could they please explain to me what happens if IPSA makes a finding, an MP is reported to the Committee on Standards and Privileges in the House of Commons and he says, "I didn't do it, guv"? That committee would then have to make a judgment and it may or may not overturn what IPSA has done so, bingo, out of the window goes a totally independent body. Is that right?
Lord Cope of Berkeley: I have two amendments in this group. Amendment 48B suggests that the Speaker of the House of Commons should be consulted when IPSA determines the procedures. He is to be consulted
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I shall not pretend that I have absolutely mastered all the amendments that the Government are making to the Bill but I think that Amendment 74A has become a consequential amendment, at least in part, to some of the amendments which the Government are making. At present, the wording says that nothing should prevent the House of Commons exercising any of its disciplinary powers, otherwise than following an investigation. We do not want its disciplinary powers to be limited following an investigation either, so why not knock out the words from "otherwise" onwards? That would make the drafting a shade clearer. Those who drafted this Bill have done a fantastic job in the time available but the drafting is not of a quality which we normally expect from parliamentary counsel. I am sure that is because of the timeframe. Some of it is obscure, as I have tried to show, and I think we have made some improvements not only to the policy but also to the drafting.
Earl Ferrers: Perhaps the Minister could clarify one small point which is simple compared with all the other problems he has been given this afternoon. On about three occasions, he mentioned the enforcement powers. "Enforcement" is a very strong word which I do not like because it has the sniff of the jackboot about it. I once received a letter at home from Norfolk County Council which on one side said "Norfolk County Council" and in a jazzy way, "working for the people of Norfolk", and on the other side it said, "Rural Enforcement Agency". One title is nice and democratic and the other is dictatorial and unpleasant. Who will enforce what on whom? I can only assume that it is Members of Parliament, those people who have been elected to the House of Commons, which always used to be regarded as the highest place in the country. Now they are having something enforced on them. What is to be enforced on them, who will do the enforcement and how?
Lord Tyler: My noble friend Lord Goodhart and I tabled Amendment 75, not being quite aware at that stage whether the Leader of the House was to move the inclusion or exclusion of Clause 7. It is only right that we should look at this issue, even if only for complete clarity at this stage. I remind the Committee that this deals with the enforcement section of the Bill, Clause 7(11), which refers to a Member of the House being expelled. It is important for us to put down a marker on yet another issue about the great relationships of our parliamentary system. A good deal of the debate so far has been concerned with the relationship between the House of Commons and the new parliamentary standards authority. Amendment 75 is about reasserting the relationship between Parliament and the authority on the one hand and the public on the other. The amendment says in a new subsection following subsection 11:
"The expulsion of a member from the House of Commons in exercise of the powers of the House under subsection (6) shall not prevent the member from standing for re-election".
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In parenthesis, perhaps I should say that I have subjected myself to the will of the electorate on rather a lot of occasions and have been successful on only six. I am sure that others in the Committee can beat that record. I have even been unsuccessful in a by-election, so I suppose I should declare that interest. It was the Beaconsfield by-election in 1982 when the Labour candidate was even less successful; a certain Mr Anthony Charles Lynton Blair. That is by the way.
The point about this amendment is that surely we should re-establish the principle that the final judge should be the electorate. We should not forget that. Therefore, we believe that it is extremely important to realise that there will be a subjective judgment, whether by the committee or even by the whole House, on the advice of IPSA, to take away the livelihood of a Member of Parliament but, more importantly, potentially to take away from the electorate the right to decide who their representative is to be. That is a subjective judgment and all judgments are subjective. What if the electors in that constituency disagree? It may be very unlikely but it is possible. Surely we must ensure in the Bill that we do not prevent a popular but censured Member of Parliament from re-standing in any by-election. There has rightly been a great deal of discussion about parliamentary privilege but that is always subject to the will of the people in a parliamentary democracy, the right of the public, as is their privilege, to elect whomsoever they like to represent them in Parliament.
I suppose our amendment is a probing amendment but it is important to re-establish the principle that in the end it is the electors who decide, not some scrutiny panel set up by the political parties which can turn into a kangaroo court or a star chamber. Neither of those gives us confidence in the way in which these things should be handled, particularly if they are peopled by the Whips, the hierarchy of the party, who may find some individual MPs rather less convenient than others. There are apparently some 30 Conservative seats now up for grabs and so rapid have been recent decisions and announcements of retirements that the selection rules have been suspended for the time being to allow other considerations to take their place. At the very least, it would be appropriate to ensure that, if this clause remains, we put something into the Bill to show that, in the end, it is not the decision of the party hierarchies which is critical but that of the electorate.
It is particularly unfortunate that the impression has been given that well established parliamentarians, who, perhaps, have a reputation for independence-even unconventional and inconvenient independence-have been those who have been asked to go, while others who are more subservient remain. That is why it is important, if the clause remains, that we establish the final authority of the people, the electorate. It surely must be right that the opportunity to walk away is, yes, voluntary, but when people are forced to walk away-even with a golden handshake and a resettlement package at the end of the Parliament-that they do so in terms acceptable to the electorate.
Baroness Butler-Sloss: I ask a practical question. I understood that Clause 7 was not going to be proceeded with.
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Lord Tyler: We do not know that yet. I am a comparative novice in this House; I have been here only some four years, but until the clause is removed from the Bill, it stands and therefore, as I understand it, all the amendments are in order. If I am corrected in a moment, obviously, I will understand.
All we seek to do in the amendment is to establish the principle that, at the end of the day, it is not the parties that should be in the position to enforce, it should be the people. If, as was indicated by all three party leaders in recent weeks, some form of report procedure should be established, that would have been a different matter. Without that, we think that it is wrong that the decisions should be taken behind closed doors. They should be taken in the open by the people they affect: the electors in the constituencies concerned. Hence the need, as we saw it, when we first saw the clause, for Amendment 75.
Lord Strathclyde: This is a substantial group of government amendments, and they will need careful consideration during the next few days.
Lord Higgins: As it appears that my noble friend is winding up, perhaps I may comment briefly. The amendments are certainly to be welcomed, as they deal with the concern expressed about the role of IPSA in these matters, with regard to both the question of parliamentary privilege and whether it might affect criminal or civil charges. The noble Baroness the Leader of the House anticipated the amendments in her letter. They are certainly an improvement. Having said that, I share the concern expressed by other noble Lords about new subsection (5)(b), that IPSA will somehow, although it is said not to be involved in individual cases but only with procedures, be able to set certain other conditions which will or may have to be taken into account by the commissioner.
Lord Bach: I rise to attempt to help the Committee. The first line of Amendment 43A, to which I have spoken, states that we leave out subsections (4) and (5) of Clause 6. The subsection which the noble Lord is unhappy about disappears if Amendment 43A is successful.
Lord Higgins: I think not. I am speaking to Amendment 43A. Perhaps the noble Lord will look at new subsection (5)(b) in the amendment, which states that IPSA can go on imposing various conditions. Although it is said that it will not be involved in individual cases, it will be involved in setting the structure which will, in turn, have to be taken into account in individual cases. That appears in the amendment. It is true that it may have appeared in the original clause, but I was referring to the provision in the amendment, not in the original clause. The noble Lord's intervention is slightly off the point, if I may say so.
I am concerned that we will still find that IPSA is fulfilling a role in that context, and we have no idea what those conditions may be. Why we should leave it to IPSA to determine those conditions, rather than include them in the Bill, I am not at all clear. I am worried that subsection (5)(b) in the amendment brings IPSA back into a role that we may prefer it not to have.
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