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Lord Jenkin of Roding: I cannot promise that the argument on the proposed new clauses in Amendments 78 and 79 will be any less complex than the one that we have just had. Nevertheless, they give rise to a hugely important point. Originally, these two proposed new clauses were grouped with Amendment 1 because they relate to the Bill of Rights and the privileges of Parliament under it. I asked that they should be degrouped and we are now taking them separately because, as will become apparent, I am raising a very different issue from those raised by my noble friend on the Front Bench and by the noble Baroness when Amendment 1 was accepted.

At this point, I add only that the other amendments that were grouped with Amendment 1 included four which I tabled, and I look forward to hearing the outcome of the noble Baroness's consideration of the issue that I raised in them: whether the different stages of the process by IPSA and the commission would be regarded as proceedings in Parliament.

By itself, Amendment 1 will not offer complete protection against scrutiny by the courts because it will not offer protection against potential litigation in the European Court of Justice and the European Court of Human Rights. I will explain why because it is very important that this should be understood. If the Government do not accept that the process of investigation by the commissioner should be regarded as proceedings in Parliament, it will remain justiciable. However, under Amendment 1, which the Committee has already accepted, it could not be justiciable in the United Kingdom courts.

Lord Campbell-Savours: Obviously the noble Lord was not here for the very beginning of the debate and so may not have been here to hear my noble friend's statement that the Attorney-General will be asked whether she can make a statement on these matters at Third Reading. I think the noble Lord should be aware of that during his contribution.

Lord Jenkin of Roding: I am grateful to the noble Lord because I was not aware of that. That would be extremely helpful, but I think my noble friend Lord Higgins asked that the Attorney-General say to what extent there remain general constitutional problems in this Bill or whether they have been dealt with.

I come back to the question whether Amendment 1 refers to the United Kingdom courts. We welcomed that amendment-I think the Government's decision to accept it was applauded in all parts of the House-but it does not cover protection against proceedings in the European Court of Justice and the European Court of Human Rights. I emphasise that this is not an anti-EU point. Noble Lords who were in the House of Commons at the time may remember my noble and learned friend Lord Howe of Aberavon taking the European Communities Bill through the House in 1972. I was Financial Secretary and in charge of the money resolution, on which we had a full day, and it is interesting to look back at that in the light of history. I have never adopted an anti-EU stance.

The proposed new clauses aim to extend the protection against judicial attack on the free speech of Members of Parliament in proceedings in Parliament not only in the UK courts but in the European Court of Justice

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and the European Court of Human Rights. Noble Lords who were there may well remember that last Tuesday I postulated in a debate on another amendment that a disgruntled person, perhaps even a Member of Parliament, may not be satisfied that an investigation had been carried out properly because an otherwise incriminating or vindicating speech by the accused in Parliament was privileged and therefore not available to the commissioner or the police as evidence. The noble Lord, Lord Lester of Herne Hill, then drew our attention to the Hamilton case.

Such a disgruntled person, unable of course to raise the matter in the courts here, could then turn to the European Court of Justice or the human rights courts and pursue his case there. I should turn to the European Union treaties to explain how that might be done and what the impact would be. Article 234 of the present version of the treaties provides that:

"The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty".

Once the treaty includes the fundamental charter of human rights, which includes the Article 11 provision for free speech, there seems to be no doubt-perhaps I should put this in the interrogative and ask: is there any doubt that this could include a power to construe matters that are currently protected by Article IX of the Bill of Rights?

Moreover, while Amendment 1 would prevent a domestic court from construing Article IX, such a court or tribunal would be obliged to refer the matter to the European Court of Justice if an application were made for it to do so. That is the impact of Article 234, which includes the provision:

"Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is a judicial remedy under national law, that court tribunal shall"-

I emphasise "shall"-

In fact, this provision places an obligation on any such tribunal to refer the matter to the European Court of Justice, if that court asks for it. This would include IPSA, the commissioner and even the Committee on Standards and Privileges in another place. I think that this is the effect of the treaties, but I should be grateful if the Government could confirm whether that is right. I have had a careful look at the treaties and taken advice, and I think that that is what they provide for.

I want to refer in passing to the opinion of the noble and learned Baroness the Attorney-General given to the right honourable Harriet Harman, Leader of the House of Commons, on 3 April in the wake of the affair involving my honourable friend Damian Green. Her letter and the report were circulated also to, among others, my right honourable friend Sir George Young, the chairman of the Committee on Standards and Privileges. They were placed in the Library of the House of Commons, but I am not sure whether they were placed in the Library of this House.

Under the heading "Admissibility of evidence and Parliamentary privilege", the noble and learned Baroness said, at paragraph 3:

"It is clear that the determination of whether material is inadmissible as evidence in a criminal trial by virtue of Article IX

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is a matter for the court. Article IX is statute law and its interpretation, as with any other statute, is a matter for the courts. It is a question of law both whether particular material constitutes 'proceedings in Parliament' and whether the use that the material is being put to amounts to the impeaching or questioning of such proceedings".

That is an admirably clear statement of the law. The noble and learned Baroness, who is an extremely able lawyer, got that absolutely right. However, it is incomplete.

Perfectly reasonably, the noble and learned Baroness was not addressing the issue of European law-I do not think for a moment that anyone suggested that my honourable friend Damian Green was to be referred to the European Court. That statement simply did not refer to it. However, the passage that I quoted from Article 234 of the treaties makes it abundantly clear that the article gives jurisdiction to the European Court of Justice. Moreover, if there is an application to the domestic court in this country, that court must refer such a question to the European Court of Justice.

That is what seems to be the position, but I ask the question: am I right in saying that that is the result of the law? Am I also right-as I suspect I am-that Amendment 1, which we passed on Tuesday, does not prevent that? It does not appear to stop it. That amendment referred only to the domestic courts. As I see it, there is nothing in that amendment that would stop the Strasbourg court deciding that Article IX-I just give this as an example-should be set aside in the interests of what that court might see as its wider duty to ensure due process.

Therefore, if the Bill is to be protected from the courts by virtue of Article IX, which I believe was the intention of this House when we and the Government accepted Amendment 1, it needs to be supplemented by the two new clauses that I have tabled in Amendments 78 and 79. In my view, both new clauses are essential if this is going to work-indeed they work in harness.

Amendment 78 exercises Parliament's sovereign right to limit the application of the European Communities Act and the European Court of Human Rights. It may be argued that this is theoretically capable of being struck down by either court. Therefore, the new declaration in clause in Amendment 79 is essential to make clear that Parliament is legislating Amendment 78 in its capacity as a sovereign body. It has been part of my understanding of our constitutional position that the UK Parliament is sovereign. As Lord Justice Cooke said 500 years ago or whenever, it can do anything it likes, except turn a man into a woman.

It has repeatedly been said in the courts-noble Lords may well remember the recent case of the "metric martyrs", heard by Lord Justice Laws-that the supremacy of EU law applies only through the European Communities Act 1972, which is available to this Parliament to repeal or amend. I am not suggesting for one moment that either should happen. What I am suggesting is that there are essential issues which need to be protected, and I shall quote in a moment from the government White Paper. The only reason one might argue that we should not do that is if one believes that parliamentary sovereignty is a dead duck. I most emphatically do not believe that.

When we joined the Community in 1973-I took the money resolution through another place at that time-the then Government's White Paper of 1971,

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for which my noble and learned friend Lord Howe had a major responsibility, made it abundantly clear that the treaties established a community of great nations,

It continued:

"Like any other treaty, the Treaty of Rome commits its signatories to support agreed aims".

Furthermore, the White Paper stated:

"There is no question of any erosion of essential national sovereignty".

An earlier sentence states:

"On a question where a Government considers that vital national interests"-

I stress those words-

There is no reference at that stage to the European Court of Justice. However, Article IX of the Bill of Rights would be regarded as a vital national interest.

I will make one last point. Neither of these new clauses would put this country in conflict with EC law, or with the ECHR. That would occur only if there were to be a judgment that sought to set aside the two new provisions passed into law by this Parliament. One must ask: would the European Court of Justice or the ECHR ever do that in relation to Article IX? I do not believe that there is the remotest possibility of that happening, because it would call into question the whole relationship between those courts and the member countries.

It behoves this Parliament now to make the position abundantly clear. If we fail to make it explicit in the Bill, in respect of which matters of privilege have been questioned and widely debated, it would surely invite doubt that Parliament intends to defend this principle. When we added Amendment 1 to the Bill-it will become Clause 1 of the Bill when it is reprinted-the intention was to preserve the rights of Parliament established under Article IX of the Bill of Rights from interference by the courts. If that is right, we must now make sure that those rights will not be overridden by the European Court of Justice or the European Court of Human Rights simply because we have omitted any reference to them in the Bill. The proposed new clauses are essential if the main purpose of Amendment 1 is to be achieved. I beg to move.

Lord Higgins: The House will be grateful to my noble friend for moving these amendments in the context of the European situation. I intervene because, when we discussed Amendment 1, which was accepted by the House, I made the point that, although it would provide a safety net, it would not be 100 per cent secure, and that it was therefore important that we should, as we went along, make sure that any other infringements on parliamentary privilege would be dealt with. My noble friend's amendment seeks to deal with one such possible loophole.

We have moved on since then. The Leader of the House has been immensely helpful, as we have gone along, in sending out "Dear Colleague" letters. These do not appear in the Official Report. It may be that, if the matters come before the courts, the doctrine of Pepper v Hart that states that the courts can take into account the proceedings of the House will not apply,

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so we will not be able to quote the noble Baroness's letter unless we read it into the record. When we discussed the matter earlier-I think that my noble friend was overoptimistic on this point-we thought that the position was protected, except perhaps in the European context. This appears from the noble Baroness's letter-I apologise for reading it out in extenso for the reason that I mentioned-not to be the case. The letter states:

"I should make clear that the Government considers that the new IPSA and the new statutory Commissioner for Parliamentary Investigations will be in a different position concerning privilege to the non-statutory Standards Commissioner. In particular, the Government does not consider that the functions of the Commissioner established by this Bill will be protected by parliamentary privilege".

I confess that I had assumed that the operation of the new commissioner, and the operation generally, was a proceeding of Parliament. What the commissioner does is something that might reasonably, on any definition, be regarded as a proceeding in Parliament. The noble Baroness seems to be saying that the commissioner is not subject to privilege in the way that we expected.

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The letter goes on:

"However, the Government considers that this is as it should be. The IPSA and the Commissioner are to be administering an allowances scheme and a register of interests established outside of the House".

It seems to make it absolutely clear that the allowance scheme and the register of interests are not within the House. The Government's argument continues:

"These are therefore not privileged matters. The Commissioner will investigate only breaches of the allowances scheme rules and the rules in the code relating to the register. These, again, do not concern privileged matters. Accordingly, it would be very unusual to extend the scope of protection of parliamentary privilege to protect non-privileged matters".

It seems to me that they ought to be privileged and that, if they are not, it would be possible for the courts to look into decisions and actions that have been taken by IPSA and the commissioner.

Finally, the next paragraph states:

"For this reason, the Government considers that the IPSA and the Commissioner will be subject to judicial review on ordinary administrative and human rights law principles. This, however, does not pose a risk to privileged matters as the IPSA and the Commissioner will not be concerned with such matters".

It seems to me that this deals with matters in Parliament that ought to be privileged. Therefore, my noble friend, in rightly extending his concern to the European context, seems to have been overoptimistic with regard to the domestic position and the extent to which Amendment 1 will operate. It is not clear in the least how the points that I have made will be affected by Amendment 1, which we have passed.

Lord Campbell-Savours: I will intervene briefly again. Last week, my noble friend undertook to provide us with additional information on the distinction between the codes, because there was confusion. I put it to my noble friend that there is still confusion on the issue of who is a commissioner, and on the role of the commissioner. There are different commissioners. The confusion extends equally to the House of Commons. Perhaps I might suggest that my noble friend circulates a paper dealing with this matter prior to a possible

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statement from the Attorney-General on Report or at Third Reading. It is important, prior to any such statement, that a clear distinction is set out.

Lord Howe of Aberavon: As my noble friend Lord Jenkin has drawn my name into the discussion, I ought to make a modest contribution. The relationship in 1971-72 between the law of this country and the European law to which we were attaching ourselves was quite different from that which exists today. I hesitate to confirm the central meaning of the passage that my noble friend quoted. My impression is that it referred to what subsequently became the right of veto in Council meetings rather than in the courts. However, a lot has happened since then. The European Court has given judgments that have been translated into the law of this country, as was required. One cannot speculate about how this issue might find its way before either of the European Courts, still less how they would be likely to decide it. Therefore, I am by no means convinced of the need for a pre-emptive provision of this kind, because there are many other sets of provisions which might well have sought to include such a thing.

I say no more than that, other than to express the hope of hearing from the noble and learned Baroness the Attorney-General, whose learning is far more established and credible than anything that might attach to me-it is some 37 years since I wore a wig in anger. I offer no advice as to the wisdom or unwisdom of what my noble friend has said, except to say that I look forward to hearing with interest anything that the Attorney-General might have to say. I do not think that I can say anything more or less useful than that.

Lord Campbell of Alloway: I shall be brief. There are two fundamental points. The first is that, as soon as one took up the first Marshalled List, it was apparent that a gap had been left by Amendment 1. That gap, I thought and still think, was closed by the amendments of my noble friend, which I supported then and still do.

Secondly, we are concerned with parliamentary privilege and, equally, with the supremacy of Parliament and the question of whether what has been acknowledged by our judiciary, who decline to enter into deciding issues concerned with parliamentary privilege, is in effect given statutory provision by these amendments. However, that leaves the further question of the position in the European Court of Justice, and it is right that that should be met as a problem. It should be dealt with in the Bill and should certainly be considered by the Government. We have and retain residual sovereignty, and the question is whether we can and should assert in the Bill that in this context the European Court of Justice would assuredly have no jurisdiction.

For those reasons, I support the amendments. Without them, the situation is wholly unclear, and one cannot be certain what the position would be other than in our courts, which, as the noble and learned Lord, Lord Woolf, explained, accept parliamentary privilege and the supremacy of Parliament. The practice of the courts is to acknowledge that and to decline to adjudicate. We must take steps to seek to ensure that that would be carried forward in the European Court of Justice. Certain other reservations about the European Court of Justice were shared by Lord Kingsland.



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Lord Strathclyde: On Tuesday on Amendment 1, the noble Baroness, on behalf of the Government, readily, rightly and wisely accepted the amendment that I proposed concerning Article IX, yet these two amendments, which I know are ungrouped, raise important questions pertinent to that. I shall not for a moment hide from anyone that I am not qualified to take a view of the intricacies of the workings of the European Communities Act 1972 and the ECHR and its interaction with Article IX, but it is important that the Government take these amendments seriously because of the very serious issues that they raise.

Earlier, the noble Baroness was kind enough to say that she would be speaking to her noble and learned friend the Attorney-General with a view to asking her to come to either the Report stage or Third Reading. I do not think that it matters whether she comes at the end of Report or the beginning of Third Reading. I do not yet know what the noble Baroness is going to say in response to this amendment but I think that it would be very useful to get some kind of authoritative view from the Attorney-General-either by letter or by coming to this House-so that we have a clearer understanding of the interaction of this important new law and the workings of the courts in this country or potentially in Europe. I cannot see any reason why we should not be able to get clarity and certainty on this issue, and I very much look forward to hearing what the noble Baroness has to say.

Lord Mackay of Clashfern: Anything that I say about this is subject to correction by the noble and learned Baroness the Attorney-General, if she is able to give her views to the House. First, I think that it has been deliberately set up in the Bill that the commissioner and IPSA-I shall call it IPSA for the time being-are outside Parliament. Therefore, proceedings of the commissioner as a commissioner and of IPSA are not covered by the phrase "proceedings in Parliament", which is fundamental to Article IX of the Bill of Rights. Assuming that there is any important action that either the commissioner or IPSA can take, that will be subject to judicial review.

As a result of the amendments that have been made, the only positive action which IPSA or the commissioner can take independently of Parliament and which has effect is that IPSA is to make rules about the nature of the procedure to be followed in relation to complaints. So long as these rules have nothing to do with the proceedings in Parliament as a result of the commissioner's report to the Committee on Standards and Privileges in the House of Commons, they will be outside the protection of Article IX but only in so far as they have a positive effect. As I said, I think that these are the only procedures outside Parliament that will have effect immediately. The other decisions of the commissioner and IPSA are of no effect of themselves, except in relation to the proceedings in Parliament as a result of the commissioner's or IPSA's proceedings outside Parliament.

There is only one point in relation to this that is possibly worthy of mention and that concerns the procedures relating to publication of the commissioner's report. If these rules take effect before the commissioner's

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report reaches the Committee on Standards and Privileges, then I do not think that they will be protected, and therefore there may be a slight question there.

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