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As regards the European law, I do not think that the referral provisions of the European Communities Act, and the treaties that are made law in this country under that Act, have any effect except in relation to proceedings in our courts. The court can have no obligation to refer to the European Court of Justice if the case is won, which our courts cannot hear in any event because it is an obligation arising on the court having jurisdiction. The European Communities law is, I think, unlikely to apply to these procedures, although one can never be sure. Lord Denning said that it would go up the estuaries and all the rest of it, and who knows where it may finish up. But as matters stand at the moment I should have thought that the European Communities legislation does not impinge directly on this.
On the other hand, the European Convention on Human Rights-not the Human Rights Act-relates to proceedings that can go to the court in Strasbourg. The court that is referred to in the European Communities legislation is, of course, the Court of Justice of the European Communities, which is in Luxembourg. The European Convention on Human Rights relates to the court in Strasbourg. There is no obligation on our courts to refer anything to the court in Strasbourg; it is a matter for the litigant to take his or her proceedings there if they wish. Therefore, I think these amendments are probably not necessary in the circumstances of this Bill. However, as I say, anything I say about this is in relation to what I understand about these procedures, and that is a very important restriction. However, I thought that it might help if I tried to clarify the matter so far as I can at this stage subject to what the Attorney-General may say at a later stage.
Lord Tyler: I hope that I may ask the noble Baroness the Leader of the House for specific guidance for greater clarity. The noble Lord, Lord Higgins, has drawn attention to her very helpful letter. All Members of the Committee have benefited from the very considerable detail of that letter. However, it raises questions in my mind as a layman; for example, in relation to the paragraph to which the noble Lord, Lord Higgins, referred. The paragraph states that,
- "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".
However, the dividing line between the administrative work of IPSA and the commissioner and what follows from that activity seems to be rather muddied. For example, the MPs' code of conduct relating to financial interests, for which we have now provided in Clause 5, will, once it is approved by the House of Commons, presumably have full protection of parliamentary privilege. But up to that point, presumably the draft will still fall within the possible purview of judicial review and, indeed, other challenge of the nature that the noble Lords, Lord Higgins and Lord Jenkin, have referred to.
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Lord Jenkin of Roding: At the beginning of my speech I said that there were four amendments standing in my name that were grouped with Amendment 1 which singled out parts of the new structure, including IPSA and the commissioner, and some of the processes; for instance, investigation. Those amendments suggested that they should be regarded as proceedings in Parliament for the purposes of Article IX. In response to those amendments, the noble Baroness undertook to take the matter away and to consider whether this should happen. It was originally part of the proposal of the Government-as the right honourable Jack Straw made clear in another place when similar amendments were debated-that that should be so, that they should be protected by privilege in Parliament. In the end, for the reasons which the noble Baroness gave on Tuesday, it was decided not to do that, but it is still an open question. I wait to hear what the noble Baroness will say about it. It is not concluded that IPSA and the commissioner would not be within the privilege of Parliament.
Lord Tyler: I am very grateful to the noble Lord, Lord Jenkin. It made me feel slightly less ignorant that he, too, has identified a real problem arising from the letter that the noble Baroness sent us because it seems to re-open this issue and leave it in doubt. Therefore, when she responds to this debate, I should be very grateful if the noble Baroness could put on the record precisely what the Government's thinking is on this because it seems to be somewhat confused.
Baroness Royall of Blaisdon: After that discussion I do not feel at all confused. I am extremely grateful to all noble Lords who have participated, and especially for the clarification given by the noble and learned Lord, Lord Mackay, and for the intervention by the noble and learned Lord, Lord Howe.
I say to the noble Lord, Lord Strathclyde, that, of course, the Government take these amendments extremely seriously. First, I can see no way in which the provisions of the European Communities Act would be relevant to this Bill. The Bill deals with the conduct of Members of the House of Commons and the arrangements which must be put in place to restore public confidence in the way we are regulated. The provisions of the ECHR and the Human Rights Act are, of course, relevant as the provisions of the Bill must be compatible with the first and the bodies set up by the Bill will be covered by the second. However, none of these considerations is, I would suggest, relevant to the question of the status of the Bill of Rights 1689. At introduction, the Bill did include provision that would have allowed proceedings in Parliament to be adduced in evidence in court. There was much debate in the other place about these measures and they no longer form part of the Bill.
The Government believe that parliamentary privilege plays an important role in facilitating free and honest debate in Parliament and we would not wish to undermine this. We do not accept that any other aspects of the Bill undermine parliamentary privilege and it is certainly not our intention to do this. But we have also been listening to noble Lords about the concerns raised
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Furthermore, as noble Lords have stated, on Tuesday we accepted that a new clause should be added to the Bill-it has been added-which provides that:
"Nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689".
Given that that amendment was made, we can see absolutely no need for further amendments of that character to be made to the Bill.
The noble Lord, Lord Jenkin, asked about referral by UK courts to the ECJ and the ECHR. A UK court must refer questions of the interpretation of EU law to the ECJ when it considers it necessary, but this is entirely distinct from questions relating to Article IX of the Bill of Rights. A UK court, of course, will not be considering issues of the proceedings of Parliament because of Article IX, and it is clearly not a question of EU law.
The wider question of whether the Bill of Rights prevents any international court looking at proceedings in Parliament is a separate issue. MPs have human rights too and could conceivably ask Strasbourg to enforce them if the parliamentary disciplinary mechanisms were deeply unfair. However, they are not; they are fair. Therefore, we deem the amendment necessary. I broadly agree with the eloquent and learned explanation of the noble and learned Lord, Lord Mackay, concerning the relationship between our courts, the ECJ and Strasbourg. I agree with his conclusion that the amendments are not necessary.
I am grateful for the repeated suggestion from my noble friend Lord Campbell-Savours about a note on the difference between the two codes. We agreed that we would provide such a note to Members of the House, which I have not done yet, but I will do so before Report.
The commissioner referred to in the Bill is the Commissioner for Parliamentary Investigations. He will investigate matters on allowances and the register of interests, and will refer findings to the Commons Standards and Privileges Committee. An existing non-statutory commissioner for standards will report to that committee under current Standing Orders of the House. He investigates breaches of the current Commons code of standards. I think that I dealt with the issue pertaining to commissioners in the letter which I circulated earlier, but I undertake to circulate a note on the code.
In relation to IPSA and privilege, the noble and learned Lord, Lord Mackay, again clarified the position in many ways. To the noble Lord, Lord Higgins, I would say that the current position on registration of financial interests and payment of allowances is that they are not regarded as proceedings of Parliament and are therefore not covered by Article IX of the Bill of Rights. That will not change under the arrangements of this Bill. If higher authority is needed for that position, I refer noble Lords to the evidence which the Clerk of the House and Speaker's Counsel gave to the Justice Committee.
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The Government's clear position is that it is right that IPSA and the commissioner as public bodies are subject to judicial review on ordinary administrative law principles. They are statutory public bodies. As the noble and learned Lord, Lord Mackay, said, the functions of IPSA and the commissioner in the Bill, as amended, do not relate to privilege matters. Judicial review of their functions does not pose a danger for parliamentary privilege. Parliamentary bodies mentioned in the Bill-in particular, the House of Commons Committee on Standards and Privileges-will continue to be protected by parliamentary privilege. I note the point made by the noble and learned Lord about whether the reports from IPSA are covered by privilege before they arrive in the House of Commons committee. I shall certainly look at that and come back to noble Lords on Report.
The noble Lord, Lord Tyler, I think-or maybe it was the noble Lord, Lord Jenkin; I hope noble Lords will forgive me-is right that the Government considered extending the scope of privilege at one point but concluded that the best way forward was to ensure the independence of IPSA and the commissioner, which are statutory bodies dealing with non-privileged matters. The question posed was: why should these bodies receive a form of protection which is reserved for Parliament on specific public interest grounds? It was concluded that it would be very unusual and controversial to deem the functions of IPSA and the commissioner to be proceedings in Parliament for the purposes of Article IX of the Bill of Rights. That is the Government's position on privilege in relation to IPSA.
My noble friend Lord Campbell-Savours referred to the possible presence of the Attorney-General on Report or at the beginning of Third Reading. Obviously, this is an issue she would deal with in her presentation to the House or, if she cannot be present, in writing to the House.
Lord Higgins: Absolutely nothing that IPSA or the Commissioner for Parliamentary Investigations does can be regarded as a proceeding in Parliament. It seems very strange to have a position of Commissioner for Parliamentary Investigations which has nothing to do with proceedings in Parliament.
2.15 pm
Baroness Royall of Blaisdon: The commissioner will look into financial issues. He will not look into anything that pertains to the work of parliamentarians. That is the distinction. The Commissioner for Standards in Public Life, on the contrary, looks into the breaches of the code of conduct of Members of Parliament. In this Bill, the commissioner will look at the code in relation to financial interests.
Lord Jenkin of Roding: I am extremely grateful to all those who took part in this short debate. I make no apology for having brought these matters before the Committee. We have had a lot of very useful advice. Like the noble Baroness, I listened to my noble and learned friend Lord Mackay with great interest and was coming to think that perhaps I should have consulted him before I moved the amendment. In reply to my noble friend Lord Higgins, I tabled these amendments
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I am grateful to the noble Baroness who has answered the question that she agreed to take back on Tuesday about the other amendments I had tabled grouped with Amendment 1. The Government have firmly come to the conclusion that neither IPSA nor the commissioner should be within the scope of parliamentary privilege, which we will need to look at to see whether there is anything that one should raise again on Report.
I still am quite unclear as to whether Article IX and the protections which it has afforded for centuries to both Houses of Parliament and its Members could be challenged perhaps, if not in the European Court of Justice in Luxembourg, under European human rights legislation and the court in Strasbourg. I will want to take advice on that because on Tuesday we had the argument on the amendments moved by the noble Lord, Lord Lester, about making sure that MPs' human rights would be protected. It was a long and interesting argument, which suggests that perhaps the European Court of Human Rights would be involved in these matters. But if it is involved in protecting Members of Parliament who find themselves perhaps being, as they would consider, unjustly treated, why would that not raise questions under Article IX of the Bill of Rights? I will want to look at this with advice. But, in the light of the debate and the noble Baroness's reply, clearly it would not be right to press these matters to a Division. I therefore beg leave to withdraw the amendment.
79ZA: After Clause 8, insert the following new Clause-
"Criminal investigations and proceedings
Where any criminal investigation or proceedings are concerned with the same or related matters which are the subject of an investigation or proceedings by the Committee on Standards and Privileges, the investigation or proceedings by that Committee shall not proceed until the criminal investigation or proceedings are completed."
Lord Jenkin of Roding: The amendment standing in my name and that of my noble friend Lord Cope can be very much more quickly and easily dealt with. In this House, we ran into some difficulties, and I believe the same has happened on occasions in the other place, where an investigation, by whatever machinery might have been in existence at the time, gave rise to the possibility of a prosecution in the courts. The noble Baroness will remember the cases that we dealt with.
This amendment seeks to make it abundantly clear-I think that this is the intention of the Government and the House authorities-that two investigations cannot proceed in parallel. If the matter is being investigated by the police on the grounds that an offence against the law may have been committed, all that this amendment says is that, in terms of time, that takes precedence.
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Lord Campbell-Savours: This is another area that interests me. I remember a number of cases where proceedings in committee were suspended pending actions in the courts. There is one particular thing that I want to refer to, and then I will come to a second one.
The first is a letter sent in 1994 by Mr Neil Hamilton to the chairman of the then Members' Interests Select Committee, Sir Geoffrey Johnson-Smith, in which he argued that because he was bringing a libel action against the Guardian newspaper, he should be entitled to secure a suspension of proceedings on a complaint that was made against him by Mr Alex Carlile-currently known as Lord Carlile of Berriew. The response of the committee chairman, on the advice of the Clerk, was that the proceedings in the court on a civil libel action should have priority over proceedings in Parliament and dealing with the complaint. I very strongly objected to that at the time. The noble Lord's amendment deals with criminal actions. However, if that is to be spelt out in legislation, the issue of civil actions must equally be spelt out. It meant that for a long period of time no action could be taken in the Hamilton case.
I want now to refer to another action, in the case of Mr George Galloway. The suspension of the commissioner's investigation into the Galloway case spanned more than one Parliament. The commissioner's inquiry began in April 2003 and the committee's final report was made in July 2007. In other words, a four-year delay arose out of potential proceedings-actually they were not even proceedings; the police were carrying out an inquiry and the inquiry went on over a long period. The committee noted in its report that the legal proceedings delayed completion of the commissioner's investigation of the complaints for nearly three years.
That led, in 2007-08, to the Commons Committee on Standards and Privileges producing its eighth report, The Complaints System and the Criminal Law. I would like to place on record the report's findings on the very matters raised by the noble Lord, Lord Jenkin. Under the heading:
"Statement agreed between the Chairman of the Committee on Standards and Privileges, the Parliamentary Commissioner for Standards and the Commissioner of Police of the Metropolis following their meeting on 3 April 2008",
"The Chairman reiterated the Committee's belief in the general principle that criminal proceedings against Members, where these are considered appropriate, should take precedence over the House's own disciplinary proceedings ... Where the Metropolitan Police receive information which suggests that a Member of Parliament may have committed a criminal offence, they will take the decision on whether to institute inquiries on their own initiative, on the same basis as they would in any other case, and without regard to whether the same information had formed any part of a
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The Parliamentary Commissioner confirmed that he had regard, where appropriate, to the possibility of criminal behaviour when investigating complaints he received against Members of Parliament. He would continue the practice in specific cases of liaising with the Metropolitan Police or other relevant force whenever he considered it appropriate to do so, initiating the process at the earliest opportunity. All parties welcomed this",
You see, I am concerned about Members of Parliament with pockets full of cash being able to use legal proceedings to defer decisions being taken by the Committee on Standards and Privileges in the House of Commons and, in this case, investigations by the commissioner. When the Al Fayed saga was unfolding in the House of Commons, every week the Committee on Standards and Privileges received yet another document from the Fayed empire. All I am saying is: let us be very wary about putting this sort of principle into legislation. It just strengthens the position of Members of Parliament who would seek to abuse the House, avoid justice in the committee and bring Parliament into further disrepute. I am afraid that I oppose this amendment very strongly. Indeed, it may well be that this legislation should deal with the issue of civil action, which I think is even more dangerous.
Lord Cope of Berkeley: I agree with the noble Lord, Lord Campbell-Savours, that the question of civil actions could lead to an MP being able to delay the investigation by the commissioner and all the rest of it and the Commons disciplinary proceedings under the Bill. But I think that the question of prosecutions is different. They are not in the hands of the Member of Parliament concerned; they are in the hands of the police and the prosecuting authorities. Of course, sometimes the police are criticised for taking a long time to bring a case to court because they are carrying out their investigations, and no doubt the criticism of delay by the police is sometimes justified. But, as I said, the matter is in the hands not of the Member of Parliament concerned but of the police and the prosecuting authorities. Therefore, with this amendment referring only to criminal prosecutions and investigations, I do not think that there is a danger of the MP being able to delay it.
I think that the amendment, which stands in my noble friend's name and my own, is important for exactly the reasons that he set out, and I will not trouble to repeat them.
Baroness Hamwee: Like the noble Lord, Lord Cope, I have some difficulty envisaging a Member spending money on being prosecuted.
I should like to ask the noble Lord, Lord Jenkin of Roding, whether he intends the term "investigation" to have a formal meaning or whether he is thinking of any informal-perhaps I should say "not so public"-work being undertaken? There may be a distinction. It might not be a real distinction in practice but, while a prosecution is in contemplation, it could be that the
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Lord Jenkin of Roding: I clearly had it in mind, and I think my noble friend did as well when we tabled the amendment, to refer to investigations under Clause 6 of the Bill. There may well be other inquiries under way-people asking for information and so on-but I think that what we are talking about here is an investigation under Clause 6. I hope that is helpful to the noble Baroness.
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