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5.45 pm
Lord Campbell-Savours: In Amendment 43A, under new subsection (5B), which deals with registration, the commissioner has to take a decision on whether he regards the failure to register an interest,
From my recollection of what happens in the House of Commons, is there not a danger in that that the commissioner, who has received a complaint from a member of the public about a failure to register, may decide that, in his or her view, it was minor or inadvertent? That may not satisfy the person who has complained and may well be taking a decision that the Committee on Standards and Privileges would not approve of if it had known that it had been taken. As I understand that subsection, the commissioner is not required to inform the committee of his decision that it is minor or inadvertent.
Rather subtle points arise about the practice that the commissioner will adopt in deciding whether matters are minor or inadvertent. That requires subjective judgments, and I foresee circumstances in which the Committee on Standards and Privileges may simply say that it would not have agreed, had it known.
Lord Mackay of Clashfern: I want to ask about the relative position of the code of conduct and the financial rules. I understand-although I am subject to correction-that the commissioner is concerned only with the financial rules, not with the code of conduct. The code of conduct is dealt with by the existing parliamentary commissioner. Amendment 43A refers in new subsection (5A) to,
It is not included in the code; it is included in the rules, so some confusion is apt to arise if those are not kept distinct.
Lord Strathclyde: Those last two or three interventions were extremely useful, especially that of my noble and learned friend Lord Mackay of Clashfern. They demonstrate that this substantial group of government amendments needs further probing. We will want to examine them in more detail, given that they have been in the public domain for only 24 hours or so.
Of course, we will support the government amendments, because the issue that the Minister is trying to resolve was raised in another place by my right honourable friend Mr Grieve. He rightly identified the impossibility of having the authority publicly recommend penalties to the Committee on Standards and Privileges. He suggested that the Committee on Standards and Privileges should retain the role it currently has of assessing evidence and giving judgment on the behaviour of Members of Parliament. As I understand it, in the amendments, the Government have conceded the point and tabled amendments that, in their words, replicate the current position. That is certainly a great improvement on the impossible provision introduced to this House originally, so we will accept the amendments and not oppose their inclusion in the Bill.
This is a complicated and substantial group of amendments that covers several clauses and has pre-empted many perfectly sensible amendments tabled by
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I do not envy the Minister the job of replying to the concerns that have been raised. We shall read very carefully what he has said and study these amendments before Report.
Lord Bach: Amendment 75 is a probing amendment that deals with the rights of a Member of Parliament. It was spoken to by the noble Lord, Lord Tyler. There is no way in which IPSA can get rid of a Member of Parliament. The noble Lord is right that only the electors can do so. The other place can expel a Member, but IPSA is not in a position to do so. The House retains all the power to sanction an MP. If it expels an MP or censures him in some way, it is its business through its committee and eventually on the Floor of the House. I understand that any MP who is expelled is entitled to stand again in a general election or a by-election. Nothing in the Bill affects that.
It may be of assistance if I explain what government Amendment 43A, which is perhaps the major amendment in this group, does. It sets up a new regime and provides that the commissioner, after conducting an investigation, may do one of three things. If the complaint relates to the allowances scheme, he may, if the Member of Parliament has accepted the findings and has agreed to repay any money owing, not refer the matter to the committee but settle it. If the complaint relates to the code of financial interests, the Member has accepted the findings and the interest is minor or the infringement inadvertent and the MP takes the necessary steps to rectify the situation, the commissioner does not need to refer findings to the committee but can settle the matter. IPSA can impose conditions about which cases are suitable to be dealt with in this way, but in any other case the commissioner must make a report of findings to the Standards and Privileges Committee. The commissioner may also make a report to the committee if the Member of Parliament has not provided information that the commissioner reasonably requires for the purposes of the investigation.
Lord Campbell-Savours: Does that mean that the Standards and Privileges Committee will not be informed of cases of failure to register? Is that really right?
Lord Bach: We are giving the commissioner power not to make a report about the Member's case to the committee in very minor and inadvertent cases. It is therefore possible that the committee will never hear of those cases.
Lord Campbell-Savours: I am sorry to press my noble friend on that, but I am going back to the period that I spent on the committee. I cannot see how it is possible for the commissioner to decide whether something
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Lord Bach: Many of the commissioner's powers in this regard depend on whether the Member of Parliament acknowledges that he or she has done something in breach. The commissioner then decides that it is minor and the matter is not reported to the Standards and Privileges Committee.
Lord Goodhart: What happens if the commissioner carries out the investigation and finds that there was no fault on the part of the Member who was being investigated? Amendment 43A does not seem to spell that out.
Lord Bach: I am beginning to think that it may be necessary for me to ask the Committee's permission to take Amendment 43A back to reconsider. I make no apologies for doing that because of the important matters that have been raised during the debate on this group. I am more than happy to do that. Amendment 43A will not be put during Committee stage. I hope that that is helpful to the Committee.
Lord Cope of Berkeley: I would prefer the Government to put Amendment 43A into the Bill while saying that they will consider the various points that have been raised and may produce amendments in response to them later. Then the Bill would read when reprinted and we would have a much better idea of it. At the moment, the difficulty is that we cannot read what the Bill will look like on one piece of paper. That makes it very difficult to unravel all these issues. I think that it would be better if the Minister put the amendment in the Bill, even if he is going to fiddle about with it later.
Lord Bach: The advice of an ex-Chief Whip, even on the opposition Benches, is always invaluable. I am going to take it. I was trying to explain the position under Amendment 43A, as presently drafted, and I promise that we will look at it.
Lord Crickhowell: I entirely agree with what my noble friend said and I welcome the Minister's response. However, he said that the information might never get to the Standards and Privileges Committee. Am I wrong in thinking that the general public may have access to that information under the legislation? Indeed, that is the origin of the whole present upheaval in Parliament. Is it not a fairly bizarre situation that someone may ask for the information and get it but the committee of the House will not have it?
Lord Bach: I take the noble Lord's point. It is the same point that my noble friend was making. That is one of the matters that we will consider with gratitude to the Committee for raising it.
I was asked what would happen if the commissioner referred a finding and it was overturned by the Standards and Privileges Committee. The committee retains the discretion to do whatever it likes with a referral from the commissioner. I do not think that anyone who has been a Member of the other place would expect it to do anything else. That does not undermine the independence of IPSA, which will set the allowances,
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Lord Campbell-Savours: Is the commissioner's report not simply the facts? It would be unprecedented for the committee to want to overturn the decision. If the commissioner was expressing a view, it would be a different matter.
6 pm
Lord Bach: It is about facts but, so that parliamentary privilege is absolutely certain, as we understand it, the committee is entitled to overrule what the commissioner has found. That is going one step further than many might require. IPSA, not the commissioner, will set the procedure for investigation, so there can be no allegation that the commissioner is both judge and jury.
I was asked why we need additional conditions to be specified by IPSA when a finding of a minor infringement of the rules is not referred to the Committee on Standards and Privileges. These additional conditions permit IPSA to specify additional matters before the commissioner refers a finding to IPSA. IPSA may, for example, wish to specify a threshold for the amount to be repaid and to avoid referring de minimis breaches or breaches where it is subsequently apparent that the rules or guidance are unclear.
On Amendment 52, the noble Lord, Lord Goodhart, may be suggesting that, by the time the Member of Parliament makes representations, any complaint has already turned into an investigation. However, this might not be the case. The commissioner may receive a complaint and want to ask the MP informally what he wants to say in response. Depending on what the Member of Parliament says, the commissioner may proceed to a full investigation. It is therefore important to have procedures that make it clear that the MP's rights to respond to a complaint apply before, as well as after, it becomes a full-scale investigation. That is what the Bill seeks to say.
Lord Goodhart: I suggested that the amendment might mean that, but, if that is so, why should the Member not also have a right to explain his own position if the initiative for holding the investigation comes from either the commissioner or IPSA?
Lord Bach: As I understand it, the Member of Parliament can explain his own position.
Lord Goodhart: That is not how it is spelt out in the legislation, which refers specifically to an MP's right to speak when an individual has put down a complaint but does not create an equivalent right on the other two bases that I have just mentioned.
Lord Bach: If the Bill does not allow for that, we must look at it after Committee. It is certainly our intention that the Member of Parliament should have that right.
I was asked why the Bill did not allow pre-investigation representations by Members of Parliament. That would add an additional layer of bureaucracy. The Bill provides that MPs can make representations throughout the investigation, although the noble Lord thinks that the Bill is not as clear about that as it should be. If the
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The noble Lords, Lord Goodhart and Lord Jenkin of Roding, both seek through their amendments to amend the requirement that IPSA may specify the conditions under which the commissioner might be able to resolve a matter without referring it to the Committee on Standards and Privileges. As we see it, the noble Lord, Lord Goodhart, would like to see the provision removed; the noble Lord, Lord Jenkin, wants to qualify it.
On the point made by the noble Lord, Lord Jenkin, the conditions that are specified must be reasonable. IPSA will be a public authority and will be subject to the normal public law principles of rationality. Exactly what conditions may be imposed on informal settlements will be a matter for an independent authority. They might include a maximum amount of overpayment that can be dealt with without reference to the Committee on Standards and Privileges or a condition relating to a number of different findings on the same Member of Parliament.
Lord Goodhart: I am sorry to interrupt the Minister again. The amendments in my name would remove the conditions, but I explained that they were simply probing. What I really want to know is who makes the conditions and in what circumstances they are to be made.
Lord Bach: I take the noble Lord's point. If I have dealt with him too literally, perhaps he will understand why. It is important that the commissioner, the Member of Parliament and members of the public know the conditions in which it might be possible to settle the matter without referring it to the committee. This is there not to provide extra hoops for Members of Parliament to go through but to attempt to be open about the fairness of the procedures.
Lord Jenkin of Roding: I am grateful for the Minister's explanation, but I am afraid that I totally misunderstood what this is about. Could there be some clarification at a later stage, along the lines of the Minister's explanation, of the meaning of the paragraphs that refer to such other conditions? I had assumed that they meant the conditions relating to a particular case, but they appear not to mean that at all. The conditions are set generally by IPSA as part of the provision for settling the case without referral to the committee.
Lord Bach: What the noble Lord asks for is utterly reasonable and I will ensure that a letter is written that clarifies our response to his question on this part of the Bill. That letter will be sent to the noble Lord and a copy placed in the Library of the House.
Earl Ferrers: Will that letter be sent in time for Report?
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Lord Higgins: Why is IPSA setting these conditions? Why are they not in the Bill?
Lord Bach: There has to be some discretion. Not every condition can be in the Bill. Perhaps the noble Lord will be patient enough to wait for the letter to drop through his letterbox.
We have debated this group of amendments for a long time. They arise from government amendments that find general support from around the Committee. The Government have responded to widely held opinion both in the other place and here. The amendments may not be perfect, but the Committee stage gives us the chance to see how we can make them better.
Amendments 19D to 20 not moved.
Schedule 1, as amended, agreed.
Schedule 2 : Commissioner for Parliamentary Investigations
Amendments 20A and 20B not moved.
Lord Higgins: I thought that the Minister said in a discussion with my noble friend Lord Cope that the Government were going to move Amendment 43A.
Lord Hunt of Kings Heath: We have not got to that amendment yet. We would like to get there soon, but I am not sure that we will.
21: Clause 2, page 1, line 17, at end insert-
"( ) In fixing the salaries of members of the House of Commons, the House shall, so far as practicable, provide for a salary, taxable according to the normal laws of taxation, and set, after consultation with the persons and bodies listed in section 3(4), at a fair level to include the reasonable needs of members to maintain homes near Westminster and in or near their constituencies."
Lord Lyell of Markyate: I will try not to detain your Lordships for too long. In speaking to Amendment 21, I shall speak also to Amendment 26. These amendments are important for practical reasons and for clarification of the interlinking between Clause 2, which provides
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At the heart of this problem is the way in which salaries and allowances have been mixed for Members of Parliament for more than 30 to 40 years. The remuneration-in ordinary terms, the pay-of Members of Parliament has been a mixture of a salary and a very broadly based allowance. It started in July 1974 when, at a time of high inflation, Harold Wilson, with the Government between the two elections, was faced with a serious revolt by Labour MPs who were in deep trouble. The average take-home pay was about two hundred and something pounds a month. They were having real difficulties in making ends meet. They had to live in London but did not have living away from home allowances or anything else. MPs were going to revolt against an incomes policy which the Government wanted to introduce for everyone else.
It was got around by the device-you could almost say the fudge-which every party has taken up since, of giving a £500 a year allowance to all Members of Parliament. That was equivalent to about 25 per cent of their actual salary or 20 per cent of their total remuneration. That has been going on ever since. It went on for all 22 years that I was in Parliament. It almost came entirely under the heading of the second homes allowance. You could choose which home would be your second home. I chose the home where I brought up my family in Hertfordshire and I lived frugally in London. I believe that many parliamentary colleagues did much the same, although some had small places in their constituency and kept their families in London.
It is important to understand that it was, and up to a point very much still is, an essential part of the overall pay and remuneration of a Member of Parliament. Today, where an MP earns £64,000 of salary and has a living away from home allowance, if it can be justified under the present rather complicated rules, of £24,000, when the tax is taken off the £64,000, approximately one-third of the whole pay of a Member of Parliament comes under this shadowy heading of allowance.
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