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Lord Mackay of Clashfern: It occurs to me in listening to the noble Lord, Lord Campbell-Savours, that in relation to criminal proceedings in some other areas of work, people may if necessary be suspended while the criminal investigation is proceeding. I do not know enough about what could happen in the House of Commons, but that certainly seems a possible solution if we have the kinds of problems to which the noble Lord referred.
Lord Campbell-Savours: The problem with that is that suspension requires a judgment and, for there to be a judgment, there must be an investigation. The investigation by the commission is ceased the moment that the police move in to carry out their investigation. So a Member of Parliament can remain in place for years, where the House knows that he has been involved in some dubious activity, but no action has been taken because the police have decided that they want to intervene, with a view, perhaps, to there being a prosecution. I ask the noble Lord: when was the last time that any of the so-called investigations by the police led to a Member of Parliament appearing in the dock?
Lord Mackay of Clashfern: There is a distinction between the commissioner under the Bill and other types of conduct. There may be a degree of flexibility there. The amendment refers only to the commissioner under the Bill.
Baroness Royall of Blaisdon: I start by saying that I recognise the concerns expressed by my noble friend. In fact, those are concerns that we have recently had to grapple with in this House in many ways. Perhaps one day we should reflect on them further in this House. As we said several times in debate on Tuesday, we must make sure that MPs are treated fairly under the Bill. The noble Lord's amendment is aimed at addressing the issue of whether it is right that an MP should be under investigation through two different channels in relation to the same facts at the same time.
I remind the Committee that as a result of the government amendments to Clauses 6 and 7, IPSA will no longer have the power to recommend any sanction to the House nor to issue a direction to an MP to take any remedial action. The findings of an investigation by the commissioner will be referred to the Committee on Standards and Privileges, unless an agreement on remedial action has already been reached with the MP. Any action taken as a result of the referral will be a matter for the committee to recommend to the House.
It is not completely clear from the text of the amendment whether an investigation means one carried out by the new Commissioner for Parliamentary Investigation, as created by the Bill, or by the Committee on Standards and Privileges. I also point out that it may be possible, for example, for both the police and the commissioner to be investigating the same behaviour without the other being aware of it. This might particularly be the case with the commissioner, who may not know that information has been passed to the police.
If the amendment is referring to investigations by the commissioner, it will be for IPSA to determine the rules which govern investigations carried out by the commissioner. It is possible that IPSA or the commissioner may wish to establish a protocol or memorandum of understanding with the police and prosecuting authorities concerning investigations that run in parallel with criminal investigations. That is how the present system works. There is a protocol between the parliamentary commissioner for standards, the Committee on Standards and Privileges and the Metropolitan Police. I think that my noble friend was referring to that.
If the amendment refers to investigations by the committee, as well as proceedings, it is surely for the other place to decide the protocols that govern the working of its committees, and that is not a matter for your Lordships' House. I imagine that those in the other place would be very surprised if we sought to insert provisions instructing them how they should approach their internal disciplinary proceedings.
In any case, I do not think that the provision envisaged in this amendment would be appropriate. Although it is right that in most cases where the police have become involved, we might expect the Committee on Standards and Privileges to suspend its proceedings until the conclusion of the police investigation, that may not always be the case. The committee might want to require the return of money or to take some other step to restore public confidence. It should not be prevented from doing so. I am sure that we can rely on the committee to behave sensibly and to consult the police as appropriate.
Accordingly, the new clause is inappropriate. It is unnecessary to ensure that there is proper co-ordination between the commissioner, the committee and the police, and it risks dictating to the other place how it should act. That seems in itself to be an interference in the exclusive cognisance of the other place, which in other areas we have been at such pains to ensure that the Bill does not do.
Lord Jenkin of Roding: I am grateful for the views that have been expressed. I listened to the noble Lord, Lord Campbell-Savours, with great interest. He has, not for the first time, found himself in a minority of one and yet been exceedingly persuasive. We have noticed that on other occasions. My noble friend Lord Cope made it perfectly clear that we are here talking about only criminal proceedings, not civil proceedings, for the very good reasons that have been spelt out. I assumed that we were talking about formal investigations. The original amendment-before we realised that the whole clause was going to be removed, when we retabled it as a new clause-was tabled before the Government had indicated their intentions for the Bill.
If I may say so, the noble Baroness made a strong case. The suggestion of a protocol between the police and the Committee on Standards and Privileges would probably be a better way to deal with the matter than having a single rule that applies to everything, because goodness knows what the variation in circumstances may be. That could give rise to the problem which, as the noble Baroness rightly said, has also affected this House, as is in the recent memory of many noble Lords.
One argument that I find a little difficult to accept, but I accept that it is extremely well intended, is that it is not for this House to make rules. The Bill has to come to this House. We know that it will apply only to the other place. We have made a great many changes here to affect matters in another place. Therefore, with the greatest respect to the noble Baroness, I do not necessarily give a great deal of weight to the argument that we should not pass the amendment because it is a matter for another place. On the other hand, the argument that she made about a better way to do that is strong, so, while thanking those who took part in the debate, I beg leave to withdraw the amendment.
Clause 9 : Further functions of the IPSA and Commissioner
Lord Cope of Berkeley: Your Lordships may be relieved to know that after those heavyweight debates on whether a knowingly false claim can somehow be less than dishonest, and other weighty matters, this is a lightweight drafting suggestion. At present, the Bill sometimes refers to "the Speaker of the House of Commons" and sometimes to "the Speaker". I suggest that the Bill should be consistent throughout. I point out that in Clause 3, the first reference is to "the Speaker of the House of Commons", but later it just refers to "the Speaker". The same formulation is used in Clause 5. Clause 9 refers to "the Speaker" throughout, but, at the end, it states:
"In this section 'the Speaker' means the Speaker of the House of Commons".
Clause 10 reverts to the same formulation as Clause 3. Schedules 1 and 2, on the other hand, follow the formulation in Clause 9 and define the Speaker again twice over. Schedule 3 reverts again to the Clause 3 formulation.
I have tabled only the two amendments in the group changing it once. I did not think that I should clutter up the Marshalled List and make the work of the Public Bill Office, which has done so splendidly over the past few days, even more difficult by tabling all the consequential amendments. Clearly, whichever way the Government decide to jump, there will be consequentials that I have not put on the Marshalled List.
The third amendment in the group is Amendment 81A. It refers to page 9, where there is a requirement of the consent of,
As the person who chairs the House of Commons Commission is by definition the Speaker, I do not understand why it does not state "the Speaker", because that is who is meant. It is unnecessarily convoluted to use the formulation in the Bill. I beg to move.
The Minister of State, Department of Energy and Climate Change (Lord Hunt of Kings Heath): I have had a little time to pursue this matter while, as the noble Lord, Lord Cope, suggested, we were debating more weighty matters. Indeed, I have been on a similar journey through the Bill to look at the various ways in which the Speaker of the Commons is referred to. The noble Lord is absolutely right, but I am glad to say that there is a coherent justification for what on the face of it seems to be some inconsistency.
The noble Lord could have put down a number of amendments but he has chosen to use what might be described as illustrative examples. Schedules 1 and 2 use "Speaker" and are given a definition because the word is used on a number of occasions. Schedule 3 has no definition because "Speaker" is used only once. The noble Lord also points out in the body of the Bill what he describes as further inconsistency. Part of the reason for that is because opposition amendments have been accepted during the passage of the Bill which in themselves have introduced some inconsistency.
However, this does not seem to be an unreasonable situation. Clause 9 refers to "Speaker" in several places, hence the need for a definition. In any event, the one thing noble Lords want from this Bill is clarity. Each part of the Bill makes it clear who is being referred to. I accept fully that it would be possible for us to seek consistency and I would be interested to know if the noble Lord is going to press us on this point. I do not consider it to be absolutely essential.
Amendment 81A concerns a different point. The noble Lord is right that the Speaker is in fact the Chairman of the House of Commons Commission. It is really a question of the quality of the Speaker's involvement in changing the capacity in which he is acting. The provisions are about the staff of the House of Commons and it is therefore the House of Commons Commission rather than the Speaker who is the employer of the staff. That apparently is why he is referred to in this way in that particular clause. I can say to the noble Lord that the House of Commons has been consulted on the drafting and has no difficulty with it.
There are two different issues here, but I hope that on Amendment 81A, I have persuaded him that we should stick with the wording as it is. If he thinks that the inconsistencies really do cause a problem, we shall look at them between now and the Report stage, but I am not convinced that this is a matter of great moment.
Lord Cope of Berkeley: I made it clear when I started that this is not a matter of great moment and I have tabled the amendments as suggestions rather than anything else. Bills should be well written, and this one has not been written as well as it might have been if the parliamentary draftsmen had been given
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80: After Clause 9, insert the following new Clause-
Sections 5 to 9 shall cease to have effect at the end of the period of two years beginning with the day on which this Act is passed."
Lord Tyler: In moving Amendment 80, I shall refer also to government Amendments 82B and 83B. At Second Reading, we all recognised that the Leader of the House was in some difficulty when dealing with a great many questions put all at once at some speed. However, she dealt with the points that were being raised on all sides of the House with admirable clarity and in a most responsive way. At col. 746, she said:
"I recognise however that some clauses could, and perhaps should, be revisited in a period of perhaps two years. I therefore suggest that we come back to this in Committee, but I do not think the Government would be opposed to reviewing some aspects of the Bill in a couple of years".-[Official Report, 8/7/09; cols. 746-47.]
That is precisely the nature of Amendment 80, which sets out in simple and straightforward terms that there should be in effect a sunset clause as follows:
"Sections 5 to 9 shall cease to have effect at the end of the period of two years beginning with the day on which this Act is passed".
There was also a great deal of discussion in the other place about the possibility of, and indeed the necessity for, some form of sunset clause. In the debate on Third Reading on 1 July, at cols. 401-08, Members on all sides expressed anxiety that a Bill of this sort, which is very complicated and raises important questions but is necessarily being considered at speed-though in somewhat more of a hurry in that place than in your Lordships' House-there should be some form of sunset or review process built into the Bill itself. Members on all sides pressed that there should be a sunset clause or something similar.
In resisting that, Mr Jack Straw had two strong arguments. The first was that the amendment put before the House was for only one year, and there was a general recognition that that was perhaps asking too much. The other was that the amendment referred to the whole Bill. I want to make it absolutely clear to noble Lords that the amendment before the Committee today does not ask for a sunset clause for the whole Bill, so that IPSA and the new regime being introduced would not be subjected to automatic abolition after a relatively short period. That objection therefore clearly falls. Our amendment refers precisely to the specific
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Before us today we have two alternative approaches to the agreed requirement for a specific assessment of the whole package introduced by this Bill within two years, to which the noble Baroness referred at Second Reading. The choice is between a full-scale sunset clause, as in Amendment 80, and a renewal clause, which is a totally different matter; it would mean the simple introduction of a statutory instrument in both Houses under the new amendments very recently tabled by the noble Baroness-indeed, we are seeing them for the first time today. At this point, and in common with many other Members of the Committee, I should pay tribute to the way in which the Leader of the House has listened so carefully to the prevailing anxieties and positive suggestions from all sides. I warmly welcome her apparent conversion to the principle of review or a sunset clause for Sections 5 to 9 and Schedule 2.
However, it is important that the Committee should investigate fully the differences between these two approaches before deciding how best to build in the necessary safeguards that all sides now think are required. There has scarcely been a contribution to the debate in either House that has not referred to the lightning speed with which we have considered and continue to consider this Bill. I am not a meteorologist, but in this instance I think that the sunset is as necessary as the lightning that we have already had to experience.
I have looked briefly at past examples of important Bills introduced at speed in response to some form of emergency to check the extent to which a review has or has not proved as satisfactory as a sunset clause. My attention was drawn to the Prevention of Terrorism Bill-now an Act-which was debated at length in the other place on 10 March 2005. I take seriously the comments made by Mr Dominic Grieve on that occasion. I must have been there because I certainly remember that we had considerable discussion about the best way of ensuring that a Bill passed at some speed would be reviewed within a specific timescale. Mr Grieve was admirably succinct and what he said is very relevant. He said:
"The situation regarding the sunset clause is quite clear. The Government know from the comments of many of their Back Benchers, including those whom they persuaded to support them yesterday, that the Bill is without doubt a major infringement of civil liberties and is poorly drafted. The hon. and learned Member for Redcar ... made that comment, even though, in her loyalty, she came back to support the Government. The Home Secretary should therefore accept that the legislation should have a finite limit. Without such a limit, I have no confidence that the Government will ever review the measure properly. We will simply be asked to rubber-stamp its renewal, and there will be no creative thinking about how we resolve our present dilemma and maintain civil liberties while fighting terrorism adequately".-[Official Report, Commons, 10/3/05; cols. 1767-68.]
We all accept that occasionally it is necessary for both Houses of Parliament to pass important legislation at some speed, but we have always insisted in the past that that speed is measured when it comes to considering a review. The Government's response throughout the Committee stage has demonstrated just how seriously criticisms and concerns have been taken, but none of the changes that have been made completely clears the
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After a good many years of seeing in what fashion both Houses consider secondary legislation, my concern is that the process proposed in the Government's amendments could easily become perfunctory. Just as serious, it might turn into an all-or-nothing confrontation rather than a careful consideration of all the different parts of the process for which we are now legislating.
In addition, as we are all now only too well aware, a great deal of the architecture, which is a word that has been used on a number of occasions by the noble Lord, Lord Hunt, for this new scheme will be developed at a secondary level-it is not all in place today-without the full scrutiny that we give to a Bill. That detail will follow on. That surely strengthens the case for a review process that is stronger than that available simply in a statutory instrument.
A political problem could arise if this is simply left to secondary legislation. Given the stark choice between accepting and rejecting a parliamentary standards statutory instrument in 2011, Members of both Houses may well feel inhibited and not prepared to seek detailed improvements to the way in which the new system is operating. Worse still, with no obvious improved system to replace it, how could they feel comfortable in voting against that order?
We have had a little over two weeks to consider the Bill. In two years, the House of Commons will look different-who knows how?-and the effectiveness of the new independent authority will have been assessed and commented on at length. Then will surely be the time for another Bill, taken on the basis of firm facts. Reflecting on evidence and not just responding to news, we will have an idea of how well all the elements of the present Bill, enacted, have or have not worked.
I am sure that the Leader of the House will appreciate that her important amendments have come to us only very recently. Although all Members of the Committee no doubt appreciate that we have received them now rather than on Report after the weekend, we surely need a little more time to consider them carefully and consult on their implications. Obviously we will all listen with great care to the Minister to try to fully understand precisely how the Government think their alternatives could work. In the mean time, at first sight-and we have had so little time to examine these proposals-I am not persuaded that the limited review process suggested is a sufficient, realistic and satisfactory alternative to the sunset clause that we propose.
Finally, I pray in aid the excellent reports produced by your Lordships' Constitution Committee. In an appendix to the report on the Parliamentary Standards Bill published on 6 July, the committee drew our attention to the particular needs of any Bill that receives any kind of fast-track process through your Lordships' House. In the recommendations contained in the Constitution Committee's report, Fast-track Legislation: Constitutional Implications and Safeguards,
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"Does the bill include a sunset clause (as well as any appropriate renewal procedure)? If not, why do the Government judge that their inclusion is not appropriate?".
That is a proper question to ask. I beg to move.
Lord Strathclyde: My name is attached to the amendment, which I think is entirely sensible and would offer a great protection for those most affected by the Bill. However, since we tabled the amendment, the Government have come forward, at a late hour yesterday, with their amendment. The noble Baroness deserves to be congratulated on it because, once again, she has shown flexibility and no little courage in the face of the declaratory remarks made by her senior colleagues in government in returning to this issue, and on being ready to go much further than the Government's initial paltry offer. We have taken an enormous step forward from where we were yesterday. She responded immediately when I raised the issue at Second Reading. I was deeply impressed by that and the whole Committee will thank her for it.
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