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The reason why I suggested this as a probing amendment was that I was slightly confused as to what was intended by the new offence and its interaction with the provisions of the Fraud Act. I suspected that the noble Baroness would give us quite a long answer, which she has done. I am still a bit mystified, which is why I will have to study it. I do not have the experience and knowledge of the noble Lord, Lord Elystan-Morgan, who deals with this stuff all the time. However, I was struck by what the noble Lord, Lord Peston, said about debates in the Constitution Committee and the views of my noble and learned friend Lord Lyell and the noble and learned Lord, Lord Woolf. If their view is that this offence is unnecessary because it is already covered in the Fraud Act, that is powerful. It is a pity that they are not in their places to make the point.



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I understand the difficulty that the noble Baroness is in because of police investigations, but can she say whether under this new offence dishonesty would need to be proved? In other words, is it possible for an MP to be prosecuted without being dishonest? If they do have to be dishonest-this is where I am slightly lost-why cannot the prosecution be made under the Fraud Act? I suspect that we will come back to all this in the next debate. I will read carefully what the noble Baroness has said before making a decision on what we will do on Report. I moved the amendment because it looks at the part of Clause 8 that brings in the regime of offences under this new law. It is important that we understand what is being done so that our colleagues in another place understand what it is that they are up against when this becomes law. On that basis, I beg leave to withdraw the amendment.

Amendment 76A withdrawn.

The Deputy Chairman of Committees (Baroness Gibson of Market Rasen): Before I call the next amendment, I have to inform the Committee that if Amendment 76B is agreed to, I cannot call Amendments 76C or 77 because of pre-emption.

Amendment 76B

Moved by Baroness Royall of Blaisdon

76B: Clause 8, page 6, line 30, leave out subsections (2) and (3)

Baroness Royall of Blaisdon: The effect of the amendments in this group is to remove from the Bill the two offences of failing, without reasonable excuse, to comply with a requirement in the code of conduct on financial interests in relation to registration of interests, and of breaching the paid advocacy rules.

We tabled the amendment to remove the offence in relation to paid advocacy on Monday, so noble Lords were already aware of it during our debates on Tuesday. We have accepted that it is an offence which would be difficult to prove without incursion into matters covered by privilege, and with the removal of the clause which would have waived privilege for the courts and prosecutors in investigating and prosecuting the offence, would have probably been unworkable. This does not mean that breach of the rules of paid advocacy is not to be taken very seriously. We have agreed not to pursue it in this Bill on the basis that the draft Bribery Bill currently receiving pre-legislative scrutiny will cover the same mischief.

I also signalled on Tuesday that I was looking further at the offence in Clause 8(2) in relation to the registration of interests. I have concluded that we should also remove this from the Bill. There would not have been the same difficulty in prosecuting the offence as there would have been with paid advocacy. I remind your Lordships that this Parliament created offences of failing to declare interests and of paid advocacy for members of the devolved Administrations and for local councillors. Although it would not have been an infringement of privilege to have continued to have an offence, I recognise the strength of the feeling expressed in the House earlier in the week. I beg to move.



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Lord Strathclyde: Amendments 76C, 77, 77ZB and the Clause 8 stand part debate are grouped with government Amendment 76B and so there will be an opportunity to have a more rounded discussion on this issue. I thank the noble Baroness for the amendment. It is extremely welcome and I am delighted that she has brought it forward, particularly as it gets rid of the second offence.

The Bill changes almost hour by hour and will become law on Tuesday, and so we find evidence of the hasty manner in which it was thrust together. The Bill creates another new offence and I wonder how many new offences have been created over the past 12 years. Perhaps the noble Baroness has that information in her folder. However, under this amendment, she is at least removing the potential new offences, and she is quite right to do so. The Bill will be much improved by the absence of the two offences.

The offences being removed are not criminal matters in other fields. They relate solely to the House of Commons and its code of conduct on financial interests. As such, as has been repeatedly established in these debates, it would be inappropriate for breaches to be examined and judged upon in a court of law. The second offence would involve a discussion of the proceedings of Parliament and the third would involve the debates in which an MP takes part in another place.

The sole remaining offence in Clause 8, which we discussed earlier, is to be implemented by a statutory instrument, and the commencement date of this SI is not tied to any other part of the Bill under the drafting of Clause 12. Can the Minister give any more information on when she expects the remaining offence to be brought in? Will the Government wait until IPSA is up and running and the new allowances regime is in place, or is the offence to be applicable immediately upon Royal Assent? The noble Baroness is indicating that it is not going to be on Royal Assent.

This process has been rushed through Parliament in order to get this one offence on the statute book by next Tuesday, but it is not going to be brought into force until the Government decide that it should be. Can the noble Baroness indicate when she believes that will be? If she cannot do it now, that is fine; it is not critical to the debate.

Without going over old ground too much, the clause has now been reduced to dealing with this one new offence, although the noble Baroness is unable to give us an example of what would fall under it or how the prosecuting authorities would make a decision about whether they believed a law had been broken. I wonder whether since the previous debate she has received any further inspiration about the reasons why such a prosecution would take place.

12.30 pm

Lord Tyler: I echo some of the points just made by the noble Lord, Lord Strathclyde. We, too, are concerned about the commencement provisions. No doubt the noble Baroness can answer that one in due course.

We are also anxious about the question of examples. It does not seem entirely logical. There may be cases at the moment that fall within this category and cannot

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be referred to, but apparently she cannot speculate about future offences. Perhaps she can give us some guidance on that in due course.

We are in a rather unusual situation. Amendment 76C, which we tabled and which is supported by the noble Lord, Lord Strathclyde, is swept up by government Amendment 76B, as is Amendment 77ZB because the Minister has endorsed our amendment on that. So we are left with the clause stand part discussion, to which I expect much more eminent Members of your Lordships' House are going to contribute in a moment.

I have no real expertise, but I make this point as a non-lawyer: the crux of the issue is whether there are some circumstances in which the prosecuting authorities will not be able to act in a way that would be comparable to the circumstances of a member of the public rather than of a Member of Parliament. Are we on all fours? Is there a soft-option argument? That issue has been addressed on a number of occasions in previous debates, both today and previously. Is the Bill, in the term of the noble Lord, Lord Strathclyde, "sentence-light" for Members of Parliament in a way that the public would find difficult?

The issue of the definition and completion of a case with regard to dishonesty is both difficult and controversial. Under both the Theft Act and the Fraud Act, where members of the public would be convicted there is presumably case law, and presumably that can apply here. But are the prosecuting authorities still able to act in the case of an offence by an MP on exactly the same terms as a member of the public? That, to a non-lawyer, is the crux.

The noble Lord, Lord Peston, referred in an intervention earlier to a discussion that took place in your Lordships' Constitution Committee. I have searched briefly through the various reports from that committee; they are timely and excellent reports but, as far as I can see, that discussion is not reflected in them. When such distinguished Members of your Lordships' House make a contribution of that sort in your Lordships' own committee to that effect, it raises important questions that we will need to have answered. I hope that the Minister will be able to do so.

To a non-lawyer, we now have a Clause 8 that is shorn of its most obvious difficulties but still raises important questions of principle about the equal treatment of Members of Parliament compared with their constituents. I hope that the noble Baroness will be able to reassure us that the Bill as it stands, with those omissions, which we assume will go through, does not leave us open to the soft-option argument.

Lord Mackay of Clashfern: I warmly welcome this amendment. I am sure that it improves the Bill as a whole. I want to add one thing. The Bill is extremely hurried, there is no question about that, but the Member of the House who is most inconvenienced and put to the most trouble by that is the noble Baroness the Leader of the House, who, along with the Bill team, is trying to cope with major changes in a Bill of this sort in a very short time. We all owe them a debt of gratitude. I hope that we may have some further changes still, but in the mean time I express gratitude for the changes that have been made.



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I am also grateful for the informal Bill as amended so far in Committee that we have with us today, although of course I am not referring to it.

Lord Campbell-Savours: My noble friend will know that I have been most concerned about the whole question of the advocacy arrangements in the Bill since it was originally published. She will recall that we had a number of conversations with Jack Straw to clarify the possible removal of subsection (2) from the Bill. I want to comment on the need for the Bill, particularly Clause 8, to go through, including an offence that affects, as the noble Lord, Lord Elystan-Morgan, referred to it, a narrow constituency of people-in this case, the narrow constituency of Members of Parliament. It is important that the Bill sends out a message to MPs as individuals that they are actually targeted in this legislation. It would concentrate their minds on the need to comply with the law, specifically in this area, more than would be the case than if they thought they were simply liable to prosecution under the general law in other areas that have been referred to by noble Lords.

MPs are well aware of the difficulties that have arisen following recent exposures in the national newspapers but, if ever there was a temptation to breach the rules in these areas in the future, a specific reference in legislation would act as an incentive not to do so. In that sense, I warmly welcome my noble friend's view that it is important that Members of Parliament get the message and that no prosecutions take place in the future because they have received that message.

Baroness Butler-Sloss: I support the taking out of subsections (2) and (3), but I want to make one further point on subsection (1) and on the fact that there would be a maximum 12-month sentence. If the Minister is right and there is a distinction to be drawn between the offence created under Clause 8(1) and the Fraud Act and the Theft Act, what is the Crown Prosecution Service likely to do? It will be much easier to prosecute under Clause 8(1) than under the Fraud Act or the Theft Act if there is a genuine difference. I suspect that, if an MP has committed an offence that is capable of being found by a jury to be dishonest but there is an easier way of prosecuting which he or she may plead guilty to, or which means that a jury is much more likely to convict, we will end up in the same situation with an easier sentence for a small group of people, as the noble Lord, Lord Elystan-Morgan, said.

I know that the Minister says that the situation is similar for benefit fraud, but I do not think that the public look upon those who commit benefit fraud in the same way as they look upon Members of the House of Commons.

Lord Cope of Berkeley: I wish to speak about whether the clause should stand part of the Bill. I agree with the noble and learned Baroness, Lady Butler-Sloss, that the public make a distinction and will not look in exactly the same way at benefit fraud as they will at fraud by MPs, which we are now considering. Nevertheless, the Leader of the House gave an analogy with the benefit fraud situation. She

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explained that the prosecuting authority has the option, in a case in which someone has been cheating on benefits, to charge the lesser or greater offence, depending on whether or not dishonesty is involved. We are trying to find out how it is going to differ in the case of MPs. It might be helpful if the noble Baroness could tell us how the prosecutors in benefit cases decide whether to prosecute the lesser offence or the greater offence, and how often. Do they normally use the lesser offence or do they normally use the greater offence? Those criteria will presumably be similar to the criteria that will be used if the clause is passed, as we expect that it will, with the amendments in this group.

Lord Elystan-Morgan: I wholeheartedly congratulate the Government on their withdrawal of subsections (2) and (3). It was a very sensible act on their part, because the offences would be triable summarily in a magistrates' court. Magistrates are wholly unqualified, in my respectful submission, to deal with either of those matters-the registration of interests or paid advocacy. It is a realm that is entirely without their cognisance. Of course, they are citizens and extremely interested in those issues, but they would have no real qualification to deal with that matter at all. They will be fumbling in the dark with regard to issues that, with the greatest respect, they could not possibly understand fully.

There is a second reason. Magistrates in many areas are still appointed to some extent on a political basis. Every attempt is made to see that the political constitution of a magistrates' Bench is not dissimilar to the political breakdown of that particular PSD-petty sessional division. That is perfectly proper, but the tendency could well be for magistrates to think in political terms in relation to these matters-or, if that is not the case, for there to be a public perception that they might do so. In other words, if a member of party A was acquitted, the public might say, "Oh yes, well she was on the Bench-they belong to party A". The same would go for parties B and C. For those reasons, it is entirely proper that this matter should not have gone to a magistrates' court.

As far as the other matters are concerned, I shall not repeat what I have already said, but there is a philosophical and esoteric distinction between dishonesty and the offence spelt out in subsection (1). In practice, I cannot think of a case falling under subsection (1) that would not be dishonest. It is not the esoteric consideration that the ordinary juror or magistrate as a judge of fact would be considering. The issue would be this: the defendant would be saying that he did not know. In each case, whether under the Theft Act, the Fraud Act or this Bill, the defence for the defendant would be, "I simply didn't know". That is what the jury would have to consider-whether they are satisfied that they are sure he knew. It is as simple as that. We are talking about theoretical distinctions that, in practice, would provide very little difficulty.

12.45 pm

Baroness Royall of Blaisdon: I am grateful for the welcome from noble Lords on all Benches for the changes that we have made and the amendments that the Government have introduced in this grouping. I

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know that many people feel very frustrated by the rapid changes being made to this Bill. Perhaps they think that this brings the Government into ridicule, but I do not. It is precisely what this Chamber is for-to improve legislation when it is found to be lacking. Clearly, this is a very hasty Bill; everybody knows that and everybody knows why. However, I think this Chamber is doing exactly as it should be doing, and the Government are responding accordingly.

The noble Lord, Lord Strathclyde, asked the important question of when the new offence will be brought in. It certainly will not be brought in on Royal Assent; it will be commenced only when the new IPSA allowances scheme is laid. I do not know exactly when that will be, but I shall keep noble Lords informed.

I have explained in our earlier debate why the Government think that it is important to have available the offence created by Clause 8(1), and why we do not think that relying on the Fraud Act is sufficient. I shall, of course, repeat and add some new arguments. There is a long list of similar offences to that set out in subsection (1), when Parliament has decided that in particular contexts it should be an offence knowingly to make a false or misleading statement. These offences apply in circumstances where a duty of complete honesty is expected. So, for example, there are offences, less serious than full scale fraud but culpable none the less, of making a false statement in relation to applications for driving licences and passports; and in an electoral context of donations to political parties.

The example closest to that of MPs is the Local Government and Housing Act 1989, which makes it an offence knowingly or recklessly to provide information in respect of pecuniary interests which the councillor knows to be false or misleading. It is not unusual in criminal law to have a hierarchy of criminal offences; for example, if one person assaults another, that is potentially criminal, but whether a prosecution is brought and, if so, for what, will depend on what can be proved in relation to the seriousness of the injury and the intention of the attacker. There is a hierarchy of offences, depending on the intention of the attacker and the injury caused for assault occasioning actual bodily harm or grievous bodily harm to manslaughter or murder. Someone charged with GBH could inevitably have been charged with assault, but that does not mean that no one will ever be charged with GBH or that it is not right to criminalise less culpable behaviour.

I agree with my noble friend Lord Campbell-Savours that the Bill sends out a very clear message, not just to members of the public but to Members of the other place. That is an important precept of the Bill. The new offence is not a soft option. Creating an offence specifically in respect to providing false information in an allowances claim makes it apparent to Members of the other place and the general public that we expect a duty of candour from our elected representatives on this matter. It is a backstop should this duty be flouted. I go back to the argument in the earlier debate about dishonesty. It is a high hurdle for the prosecution to mount; it is something in addition to knowledge and intention and requires that the prosecution proves that, first, the person has behaved dishonestly according to the ordinary standards of reasonable and honest

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people and, secondly, that the defendant realises that reasonable and honest people would regard what he or she did as dishonest. There is a big distinction between dishonesty and what is cited in respect of the new offence.

I hope that the success of creating a new criminal offence and the success of the Bill will be judged not by criminal convictions but by honourable Members in the other place changing the way in which they act and that no prosecutions will be made.

Baroness Oppenheim-Barnes: Would the Minister not agree, especially in respect of what she has said about the public's view about behaviour of Members of Parliament-and as the noble Lord, Lord Campbell-Savours, has also said-that this provision will not reinforce that message until and unless IPSA, when it makes its report about Members' allowances, does so in such a way that those allowances will no longer contain the type of expenses that are large and bizarre or the ones that are small and petty, which have infuriated the public much more than anything else, and which will not be put right by anything we have done in this Bill or in the near future until that takes place?

Baroness Royall of Blaisdon: The noble Baroness makes an extremely important point. Of course the new system of allowances is one of the key issues that will change behaviour and public perceptions. We believe that is one of the pieces of the jigsaw; the Bill and the offence we are currently discussing is another key part of it.

I return to the previous argument about examples. In very general terms, the type of cases where dishonesty might not be proved includes where someone intends to repay the expenses later or where they know the facts and the claim are false, but think that they are entitled to the money for some other reason.

Amendment 76B agreed.

The Deputy Chairman of Committees (Baroness Gibson of Market Rasen): I cannot call Amendments 76C and 77 for reason of pre-emption.

Amendment 77ZA not moved.

The Deputy Chairman of Committees: Amendment 77ZB; the noble Lord, Lord Tyler.

Lord Tyler: Not moved.

Lord Mackay of Clashfern: I think that the last amendment we debated was also in the name of the Leader of the House, so it should be given effect to-subsection (5) should go.

Lord Tyler: I anticipated that the noble Baroness would herself be moving that amendment. I apologise to the Committee if I did not give her the opportunity to do so.

The Deputy Chairman of Committees: I will re-call the amendment. Amendment 77ZB?


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