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When we discussed this part of the Bill in Committee, the noble Lord recognised that there would be circumstances with which the IPSA was faced which could not be predicted. He therefore accepted that it was reasonable for the IPSA to be able to set further conditions without specifying what those might be. He further suggested that the drafting could be improved by the insertion of "reasonable". He said:

"The insertion of that word would simply act as a signal that, if the commissioner and IPSA found themselves with a case which might arouse strong emotions because people had behaved very badly, they should not be allowed to introduce vindictive conditions but, rather, reasonable conditions".-[Official Report, 14/7/09; col. 1080-81.]

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That point is already covered. If an MP has acted very badly, he will not have access to this procedure in the first place.

In relation to overpayment of allowances, the MP must have acknowledged the breach and have agreed to remedial action. In relation to breaches of the code, the financial interest concerned must, in the view of the commissioner, be minor, or the failure to register inadvertent. The provisions in subsections (5)(b) and (7)(c) do not mean that the IPSA can use these powers to set out a series of conditions which have the effect either of undermining the other provisions of the subsections or the more general procedures which are to be drawn up under subsection (9). However, the Government accept that the noble Lord has made a case that these conditions, like the other procedures which the IPSA will draw up, should be subject to the same sort of consultation. For the reasons I have set out, we cannot accept the noble Lord's amendments as they stand and we want to keep the provisions in subsections (5)(b) and (7)(c ), but we undertake to bring forward an amendment in substitution for his amendment to subsection (9) which will make this provision subject to consultation. I am very grateful for the ideas put forward by the noble Lord and I look forward to bringing back an amendment at Third Reading.

Lord Jenkin of Roding: My Lords, I am immensely grateful to the noble Baroness for her support. We look forward to seeing her amendment in a couple of hours' time. The noble Lord, Lord Barnett, laughs because he suspects that the relevant debate will take more than two hours, but we look forward to seeing the amendment whenever it arrives. With that assurance, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendments 10 and 11 not moved.

Amendment 12

Moved by Lord Jenkin of Roding

12: Clause 7, page 5, line 30, at end insert-

"( ) The member may, if no fault is found by the Commissioner, require or refuse publication of the findings."

Lord Jenkin of Roding: My Lords, I am in the happy position of having already secured the support of the Liberal Democrat Benches and of my own Front Bench for this amendment. I hope that it will also have the Government's support.

If a Member is found not to be at fault, and presumably with no blame, he may have incurred unwelcome publicity, in which case he might require the matter to be reported to the Privileges Committee so that it can become a matter of public knowledge. On the other hand, he may feel that the whole thing was a mistake, that there has been no publicity and question why it should go to the Standards and Privileges Committee. It seems to me that it should be his choice.

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If it has been found that he was not at fault, he can decide whether there should be publicity. I beg to move.

Lord Strathclyde: My noble friend's amendment seems eminently sensible. As he seems to be on such a roll with the Government, I very much hope that they will accept the amendment.

6.15 pm

Baroness Royall of Blaisdon: As the noble Lord explained, his amendment would leave it up to the MP to decide whether a "no fault" finding should be publicised. We had some debate in Committee on 14 July about what should happen to publication of the commissioner's reports, particularly where there had been a "no fault" finding. I think that noble Lords were torn between concern for the position of the MP and concern that an inquiry could be conducted entirely in private with no transparency. In that case, what guarantee would there be that a "no fault" finding was genuine, or that the rules had been applied consistently, if the results of some investigations were not publicised?

The Government believe that there should be a presumption in favour of transparency. We think it highly unlikely that an MP who is known to have been under investigation and has been cleared will not want a report to be made. Otherwise the issue would appear to have been left unresolved. The points about consistency of treatment I have referred to are extremely important. Moreover, we have heard much lately about "transparency being the best antiseptic". It is because of the perception that the present scheme is handled behind closed doors and according to arcane rules that much of the present public anger has been provoked.

Having said that, the Government also believe that the question of whether there should be publication of a finding is for the IPSA to draw up, as the Bill provides. We do not think it is right that the Bill should seek to dictate this and we do not agree that it should be for the MP to decide whether or not a finding should be published. There must be a consistent scheme for this. It may be that the proposed consistent outcome is that "no fault" findings are not published. It may be that the proposed consistent outcome is that cases where the commissioner concludes that he or she can settle the matter without reference to the Committee on Standards and Privileges should not be published. The Government might think that is the wrong approach, but they still consider that this is for the IPSA to determine. In other debates noble Lords have asked questions about how we can be sure that the financial interests code will be applied consistently. One of the answers to that question is, "by making public the outcome of investigations". That should be, I would suggest, the starting point.

Lord Jenkin of Roding: That is a somewhat disappointing reply. By definition we are dealing with the case of a Member against whom no fault has been found. It seems to me that the initial stages of an investigation by the commissioner are bound to be conducted away from the public eye. The press will not be breathing over his shoulder, watching every move he makes. If he finds that there is absolutely no fault at

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all, and there has been no publicity, I cannot understand why that matter needs to be referred to the Committee on Standards and Privileges.

The noble Baroness said that we should let the IPSA make the rules. It is probably not appropriate that we should divide on this issue this evening and I do not think that the House is in a mood for that. However, I hope that the IPSA will be persuaded to have some regard for the points that have been made in several parts of the House this evening that some consideration should be given to a Member's own position in those circumstances. That is all I am asking for. If the noble Baroness does not like that, she must express her views to the IPSA. I hope that the IPSA will take account of what has been said in this House.

Lord Lawson of Blaby: My Lords, my noble friend makes a very powerful case. Consistency is known as the hobgoblin of little minds. In this case it does not apply at all. I draw a parallel with people who give to charity. Sometimes people who give to charity like to have public approbation for what they are doing. Other people give to charity anonymously because they do not want other charities battering on their door. That is not being inconsistent. I hope that the noble Baroness will think of some way of going further to meet my noble friend's point. Not least, the IPSA could have a duty to consult the Member's wishes. It may be thought that there would be a presumption that the Member's wishes would be respected even though she may not wish that to be final.

Baroness Royall of Blaisdon: My Lords, I stand by what I said in response to the noble Lord, Lord Jenkin. The Government believe that this is a matter for the IPSA to decide. The IPSA may decide that it wishes to have a consistent approach, or it may not wish to do that. However, it is up to the IPSA. I hope that noble Lords will agree that it is appropriate for this matter to be left to the new body.

Lord Jenkin of Roding: My Lords, I am grateful to my noble friend Lord Lawson. I note that he will not speak in the next debate. I am concerned that an important debate is to follow and I do not want to waste time. I have heard what the noble Baroness the Leader of the House has said. I hope that the IPSA will take account of what has been said in this House. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendment 13

Moved by Lord Pannick

13: Clause 7, page 5, line 36, after "must" insert "be fair and"

Lord Pannick: My Lords, Amendment 13 would impose on the IPSA a duty to ensure that the procedures which it lays down for the conduct of investigations by the commissioner must be fair. Subsections (11) and (12) already require that the procedures must satisfy specific requirements of fairness, but all other matters of procedure are at present left to the IPSA, with no governing principle in the legislation.

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Given the novelty of the functions that the commissioner and the IPSA will perform in relation to investigating the conduct of a Member of Parliament, and that these new functions are being created in order to respond to the public demand for a transparent and fair system, it is necessary for the legislation to state that fair procedures are required. That would not limit the discretion of the IPSA to decide for itself what fairness requires in this context. But it would be helpful to IPSA, the commission and the public by leaving no doubt that the general criterion in relation to the important procedures is one of fairness. I beg to move.

Lord Lester of Herne Hill: My Lords, I added my name to this amendment and I would like to add one or two comments. As the noble Lord, Lord Pannick, indicated, judicial review would be extremely rare in this context. Therefore, inserting the word "fair" as a requirement of procedures would not make it more likely that the courts would become involved in deciding whether a procedure was fair. But as I said in earlier debates on the Bill, Members of Parliament are entitled to be treated fairly. I am sure that everyone in the House and the other place would agree with that. Since it is important that procedures be devised in the other place that ensure fairness, one of the important aspects of this amendment is to send a signal-in the Bill or in some other way-that this House hopes that the other place will ensure fairness in all its procedures. There may be other ways of dealing with this, but I ask the noble Baroness the Leader of the House, or whoever is responding, whether this might be done in some way to ensure fairness.

I have one other slightly odd thing to say. For a different purpose, I have been looking at the procedures in Hong Kong-that remarkable, small but very energetic place. I found to my surprise that the Government there have dealt with members of the Legislative Council's expenses, complaints and anything else, including a fair procedure and an appeal, in the most remarkable way. I find it amazing, having taken it to bits over the weekend for another purpose, that they had been able to do that in the Special Administrative Region of the People's Republic of China. Hong Kong has a basic law and fairness spelt out. It does not have the sovereignty of Parliament, but it does have parliamentary privilege. At the very least, should we not ensure that Members of Parliament are treated fairly by saying so-either in the Bill, as this amendment suggests, or in some other way?

Lord Woolf: My Lords, I support what has been said about this amendment. One thing that none of us would want to see is the courts involved in the activities of IPSA except in the most exceptional circumstances. It is undoubtedly the case that if the courts were involved, they would say that IPSA was under an obligation to be fair. That is self-evident under the normal rules that the courts require on application for judicial review. But in these special circumstances, we want to avoid the matter being in any doubt so far as IPSA is concerned. The way to avoid that doubt is by having it clearly stated in the Bill that fairness is required.

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Baroness Butler-Sloss: My Lords, I, too, support the amendment. The noble Lord, Lord Pannick, talked about various groups of people who want to see the word "fair" included in the Bill. Members of Parliament in the other House should have that in the Bill. It is important. There are a whole lot of things in Clause 7 about what IPSA must do and what the procedures must be, but the most important procedure of all is fairness in the way that IPSA carries out its duties.

Lord Mackay of Clashfern: My Lords, it is perfectly natural to have fairness expressed in this. We are not interfering with the House of Commons at all. Its procedures have to be dealt with in connection with its executive action. But as for the commissioner's inquiries and so forth, IPSA is making the rules and that those rules should be fair is almost self-evident.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord, Lord Pannick, for allowing us to debate this matter again. I agree with the noble Lord, Lord Lester, that MPs are entitled to be dealt with fairly. As the noble and learned Lord, Lord Woolf, suggested, IPSA and the commission, as public bodies, will be under a public duty to act reasonably and that duty is analogous to the duty to act fairly. I have listened very carefully to what has been said in Committee. I have listened to the distinguished contributions of noble and noble and learned Lords who have spoken in our debate this evening and the Government are happy to agree with the amendment.

Lord Pannick: My Lords, I thank the noble Lord very much indeed. It is typical of the way in which the Leader of the House and the noble Lord have dealt with matters during the passage of this Committee.

Amendment 13 agreed.

Amendment 14 withdrawn.

Clause 9 : Further functions of the IPSA and Commissioner

Amendment 15

Moved by Lord Jenkin of Roding

15: Clause 9, page 6, line 38, leave out subsection (6)

Lord Jenkin of Roding: My Lords, the noble Lord has taken me by surprise. He will remember that there was a discussion on the issue of the various commissioners in Committee and my noble friend Lord Higgins, and in particular the noble and learned Lord, Lord Woolf, asked why it was necessary to have two commissioners. He made the point that it could give rise to some confusion and even in our debate there has been confusion. We are dealing with two commissioners. There is the existing Parliamentary Commissioner for Standards, Mr John Lyon, CB, who the noble Baroness explained would remain responsible to the Committee on Standards and Privileges. Then she went on to refer to the second one as the IPSA commissioner who

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would deal purely with financial breaches within the framework set out by IPSA. In the Bill, he is actually known as the Commissioner for Parliamentary Investigations, but we understood what she meant. That is what he is called. He is referred to throughout as the commissioner. We have become used to that.

To come back to the question of the noble and learned Lord, Lord Woolf, do we really need two commissioners? Would there be a possibility of a merger between the two bodies or might there be some transfer of functions? That leads us to the Bill. I was expecting there to be an amendment about the right of appeal, but it was not moved so this is all very difficult.

We are dealing with Clause 9 on further functions. We come to the question of the possible transfer of functions between the two commissioners. The purpose of tabling this amendment was not necessarily to remove subsection (6) but to give the noble Baroness an opportunity to be a little more explicit about what the Government intend. It is not at all clear from this clause what functions might be transferred to the new commissioner; the Commissioner for Parliamentary Investigations. Why is the provision in the Bill? What functions might be referred to the new commissioner? Who is expected to take the initiative in proposing such a transfer of functions? When do the Government expect such a process to take place?

One difficulty that has already been referred to this afternoon is that the existing parliamentary commissioner is not a creature of statute. His existence depends entirely on resolutions in the other place, whereas the new commissioner for investigations will owe his existence entirely to this Bill; he will be a creature of statute. Are the Government satisfied that Clause 9 as drafted will deal with this considerable difference in the origins of the two bodies?

I am sure that I am not alone in looking for some clarification of what this clause is intended to bring about, and I hope that the noble Baroness will be able to give us some enlightenment. I beg to move.

6.30 pm

Baroness Royall of Blaisdon: My Lords, I understand why the noble Lord, Lord Jenkin, wishes to have clarification of this clause. As he said, we have returned to a point made in an earlier debate by my noble friend Lord Campbell-Savours.

The initiative for any transfer of functions must come from the Speaker. It has to be discussed with the Committee on Standards and Privileges as well as with IPSA. The Speaker has to lay any agreement to transfer functions before the House, and it cannot come into effect until the House has resolved to approve it. Therefore, I think that it is clear that there is little opportunity for a transfer of the sort of functions that noble Lords may be concerned about, because those who would be responsible for this transfer of functions would not make a recommendation unless they had decided that it was in the best interests of the House. Moreover, it is important to be clear that Clause 9(4) can only be used to transfer existing functions of the parliamentary commissioner for standards. The new statutory commissioner would then in essence be wearing those non-statutory functions as a separate hat. There

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would be no question of the statutory commissioner exercising his statutory functions in relation to those matters, and, in particular, the statutory commissioner would be acting in accordance with the standing orders of the House rather than the procedures of IPSA.

So, in future, if the House of Commons and the Speaker of the House wish to have just one commissioner, not two, that would be possible. But that commissioner would wear two hats: he would wear one hat with his statutory functions and one with his non-statutory functions. However, I can assure noble Lords that there is no intention that this provision could be used to give the new commissioner responsibility for things that both Houses have made clear during the discussions on this Bill they would not wish him to take on. But there may be functions of the existing commissioner that are purely administrative which it may be thought useful in future to transfer to the new commissioner. That is why we have left the provision in the Bill, along with that for allowing the transfer of functions to IPSA in relation to the keeping of registers.

It is therefore a process of evolution. We are future-proofing to some extent, because we believe that in future they may wish to transfer some administrative functions of the commissioner for parliamentary standards to the new commissioner-that is, the Commissioner for Parliamentary Investigations. We are enabling that process to take place should the Speaker of the House of Commons deem it fit.

Lord Campbell-Savours: My Lords, having spent some time on that committee, I say to my noble friend that it may well be that the commissioner in the Commons-the commissioner to the committee-should simply go completely so that there is only one commissioner. That system might work far more effectively. The only residual issues would probably be in the area of dealing with breaches in cases of advocacy, but those could be dealt with directly by the committee on privileges itself.

Baroness Royall of Blaisdon: My Lords, my noble friend may well be right, and the way in which the Bill is constructed would enable that process to happen. I therefore hope the noble Lord will agree that the amendment is not necessary and agree with the clause as drafted in the Bill.

Lord Jenkin of Roding: My Lords, I was not proposing that it should be removed from the Bill; it is perfectly obvious that it is a proper definition clause. However, the noble Baroness has given us some explanation of how she sees this developing. There are two different commissioners; they have different origins, as I said, and they have different roles. It may well be that there can be a process of rationalisation between the functions of the two. As she said, the number of people who have to be consulted and the consents that would need to be formed provide protection for both the public and the Members of another place. I am grateful to her for her explanation and, with that, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

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