Parliamentary Standards
Bill
1. The Parliamentary Standards Bill is a legislative
response to the public anger in recent weeks about the conduct
of some Members of both Houses of Parliament in relation to financial
matters. In this report we express concerns about the bill. We
are particularly concerned by the hasty manner in which policy-making
has taken place, with negligible public consultation, and the
subsequent 'fast-tracking' through Parliament of a bill which
will have major constitutional implications. We focus on these
issues of process in this report. We intend to make a further
report on the bill, dealing in more detail with constitutional
points relating to the policy of the bill.
2. At the outset, we need to recognise that the
bill as introduced in the House of Lords is in two vital respects
different from the one originally introduced in the House of Commons.
First, the Government agreed to remove a clause seeking to place
a statutory duty on the House of Commons to have a code of conduct.
Second, the Government was defeated on a controversial clause
("the proceedings in Parliament clause") that sought
to carve out an exception from Article IX of the Bill of Rights
1689, which protects freedom of speech and proceedings in Parliament
from being questioned in court. The Government indicated that
they will respect the view of the House of Commons and not seek
to reintroduce the proceedings in Parliament clause. Both of these
clauses threatened to undermine freedoms which are essential for
Parliament to operate properly and risked opening the door to
conflict between Parliament and the courts.
3. We welcome these changes. They do, however,
reinforce our view that the bill is the product of a desire to
respond to a demand to see something done, as the Government put
it, rather than the outcome of a law-making process suitable for
a bill with serious constitutional repercussions. Even with the
two clauses removed, the bill raises other as yet unresolved questions
about the relationship between Parliament and the courts. Moreover,
it will fall to the House of Lords to consider how the bill hangs
together in the light of the decisions made in the House of Commons.
Baroness Royall of Blaisdon, the Leader of the House of Lords,
told us 24 hours before the removal of the proceedings in Parliament
clause, that "The package in the bill is a coherent whole,
and no part of it would work without the rest". The bill
will accordingly have to be substantially recast. To do so under
an accelerated passage is in our view wholly unacceptable given
the questions of constitutional principle and detail that it raises.
The contribution of the House of Lords to the
scrutiny of this bill
4. In different circumstances, a bill that seeks
to regulate the working practices of the House of Commons might
be thought to require the House of Lords to adopt a degree of
deference in the scrutiny of it. It has been a characteristic
of the British constitution that each House should be free to
regulate its own internal affairs independently of the other.
Our Committee is, however, called upon to examine all public bills.
The bill raises questions of broad constitutional significance,
including that of the relationship between Parliament and the
courts and matters relating to parliamentary privilege. More specifically,
the Government have indicated in relation to the present bill
that they intend "to extend it to the Lords, using the same
principles, as soon as the Parliamentary timetable allows".[1]
This was confirmed by the Justice Secretary during the second
reading of the bill in the House of Commons on 29 June.[2]
A document deposited in the House of Commons Library by the Government
on 20 May 2009, referring to the proposed Independent Parliamentary
Standards Authority, states that "it is clearly appropriate
that this new body also takes responsibility for these issues
in the Lords".[3]
The document adds:
"We recognise that the principle of self-regulation
operates differently in the House of Lords. It is clear that extensive
work and consultation will be necessary in order to ensure the
agreement of the House to the effective transfer of responsibilities
to the new body".
5. For these reasons, it is in our view necessary
for the House of Lords to subject the provisions contained in
the bill to close scrutiny, even though the proposals contained
in the bill apply (at present) only to the House of Commons. In
any event, it is clear from remarks made in the proceedings on
report in the House of Commons that that House expects the bill
to be thoroughly revised in the House of Lords, if only to make
it workable.
Constitutional consequences of a further move
away from self-regulation
6. On one view, the policy of the bill to create
an independent body responsible for allowances and registration
of interests, working at arm's length from Members, may be seen
as an incremental development. The House of Commons first established
a system for registering financial interests in 1974, in which
the registrar was a clerk and alleged abuses were investigated
by a parliamentary committee. In 1995, the first report of the
Committee on Standards in Public Life, under the chairmanship
of Lord Nolan, recommended that the House of Commons should appoint
a Parliamentary Commissioner for Standards, who would be "a
person of independent standing" responsible for maintaining
the register of interests, offering advice to MPs, and investigating
allegations of misconduct relating to the register. Decisions
about imposing penalties would remain with a committee of MPs.
The House of Commons accepted this recommendation. Parliament
has also agreed to subject itself to external regulation of a
constitutional character in other contexts, notably in the Freedom
of Information Act 2000.
7. On the other hand, the policy expressed in
the bill of establishing a statutory external regulator of important
parliamentary matters, acting within a statutory regime and potentially
subject to the jurisdiction of the courts, in our view represents
a step-change in the trend towards greater external regulation.
Self-regulation has been a central characteristic of both Houses
of the United Kingdom Parliament. The "exclusive cognisance"
of each House to regulate its own affairs, free from intervention
by the courts, has been a key feature of our constitutional framework.
The bill breaks with that convention. This is a profound change
which has the potential to give rise to conflict between Parliament
and the courts, the implications of which require very careful
examination.
8. There are questions about the extent to which
decisions taken under the new institutional framework created
by the bill—by the Independent Parliamentary Standards Authority
(IPSA) and the Commissioner for Parliamentary Standards—will
open up the possibility of judicial review challenges. We note
that suggestions have also been made that the bill may even lead
to the prospect of judicial review proceedings against the Speaker
of the House of Commons. The proposition raised by the Joint Committee
on Human Rights that disciplinary proceedings within Parliament
against Members ought to be subject to an appeal to the courts
was not debated in detail in the House of Commons and deserves
to be examined during the bill's passage through the House of
Lords. There are also questions about the constitutional acceptability
of the policy of the bill to create special criminal offences
that apply only to a small class of person (in this case, Members
of the House of Commons). It appears to us that the excessively
speedy policy-making and consideration of the bill has prevented
proper examination of these and other legally and constitutionally
complex questions. We will address these further in our second
report on the bill.
Fast-tracking of policy-making and of the passage
of the bill
9. The way policy-making has been rushed,
the lack of public consultation and the limited opportunities
given to Parliament to scrutinise the bill all, in our view, fail
to meet the minimum requirements of constitutional acceptability.
10. The Government decided that the bill should
have an accelerated passage through both Houses. The bill was
introduced in the House of Commons on Tuesday 23 June 2009. Second
Reading was held on Monday 29 June; the Committee stage took place
on Tuesday 30 June and was completed on Wednesday 1 July, along
with all remaining stages. The timetable for consideration of
the bill did not even provide the House of Commons with an opportunity
to debate the proceedings in Parliament clause, which was of vital
constitutional importance.
RUSHED POLICY-MAKING?
11. The House will want to consider whether the
bill is the product of a thorough policy-making process. To do
so, it will be helpful to set the bill's proposals in the context
of the recent initiatives designed to restore public confidence.
12. On 23 March 2009, the Prime Minister invited
the Committee on Standards in Public Life, chaired by Sir Christopher
Kelly, to inquire into MPs' allowances.[4]
In his letter to Sir Christopher, the Prime Minister stated
"I understand that you will be undertaking a short, focused
review of whether current arrangements in the House of Lords are
still appropriate, given the reforms already completed for MPs,
once the Sub-Committee on Lords' Interests, chaired by Usha Prashar
has concluded its review. It would be helpful to consider the
evidence from that exercise".[5]
The Committee invited written submissions (the closing date for
which was 5 June 2009) and is holding a number of oral evidence
sessions. The Committee's report is expected to be published in
autumn 2009.
13. On 21 April 2009, the Prime Minister used
the constitutionally unorthodox medium of a video clip on YouTube
to announce "urgent proposals to make our system of MPs'
allowances and expenses simpler and less generous".[6]
These interim changes were debated in the House of Commons on
30 April 2009. The House of Commons voted in favour of Resolutions
that: welcomed the Committee on Standards in Public Life's inquiry;
amended rules relating to allowances for MPs in outer London
constituencies; ensured that all claims are backed with receipts;
amended the rules relating to MPs' declarations of outside
earnings; and made changes to the arrangements for MPs' staff
employed on parliamentary business.[7]
14. On 19 May 2009, the then Speaker of the House
of Commons made a statement to that House saying that a meeting
of party leaders:
"... received a paper from the Prime Minister,
which was endorsed by the other party leaders, calling for a fundamental
reform of allowances—moving from self-regulation to regulation
by an independent body. The Government will consult widely on
this proposal. Further to this, the Leader of the House will be
making a statement tomorrow, which will allow the House a full
opportunity to ask questions, and Members to air their views on
the decisions we have made and the proposals for the future".[8]
15. On 20 May 2009, Harriet Harman MP (Leader
of the House of Commons) made a statement in the House of Commons
on a proposed Independent Parliamentary Standards Authority.[9]
Subsequently, a three page outline of the proposals was deposited
in the House of Commons Library[10]
and later uploaded to the Ministry of Justice website.[11]
16. On 23 June 2009, when the bill was introduced
to the House of Commons, the Leader of the House of Commons said
in a Written Statement:
"This Bill is the first stage of legislation
and covers the specific but important and urgent task of setting
up an independent authority. There is likely to be subsequent
legislation where this is judged necessary, not least in the light
of further cross-party discussions".[12]
17. We have recently been engaged in an inquiry
into fast-track legislation. Our report Fast-track Legislation:
Constitutional Implications and Safeguards will be published
in the next few days. In Appendix 1, we have set out the recommendations
we will make for improvements to the pre-legislative, legislative
and post-legislative scrutiny process relating to fast-tracked
legislation. We wrote to Baroness Royall on 25 June seeking a
full explanation of the justification for fast-tracking this bill,
in accordance with our recommendation at paragraph 186 of our
forthcoming report.[13]
18. Baroness Royall told us "Fast tracking
is necessary because there is an urgent public demand to see something
done about the system for regulating MPs' expenses".
She said "If the legislation were not passed until the autumn,
that would lose three months during which the public would continue
to wonder what MPs were doing to answer their concerns".
It appears that the key driver for the bill is public perception,
rather than any specific policy outcome. Nevertheless, in answer
to our question as to what public consultation there had been
about the policy contained in the bill, Baroness Royall responded
that "The policy proposal directly affects only MPs
and the staff of the House". She did not allude to any external
public consultation, nor admit the case for it. This strikes us
as an worryingly narrow view of a bill designed to rebuild public
confidence in the way Parliament operates.
19. There is no sign that the policy proposals
contained in the bill were subject to rigorous internal scrutiny
as to their constitutional acceptability. Once again, there appears
to have been a failure at the centre of Government to prevent
a policy with clear constitutional flaws being pursued. The abandoned
clauses in the present bill now lay on the cutting room floor
alongside clauses from the Legislative and Regulatory Reform Bill
in 2006 and the 2003 announcement that the office of Lord Chancellor
would be abolished.
20. We recognise that there have been discussions,
conducted under the "Chatham House Rule", involving
the leaders of the political parties about the policy in the bill.
We understand that the bill changed substantially as a result.
We welcome consultation between the parties about matters of significant
constitutional importance. But such discussions are no substitute
for rigorous evaluation of policy options and public consultation.
It is ironic that provisions designed to restore public confidence
in aspects of the operation of Parliament have emerged from behind
closed doors without providing an opportunity for adequate public
engagement before the policy is crystallised into a bill introduced
to Parliament. This is no way in which to legislate on matters
which raise complex constitutional and legal issues.
21. The proposals contained in the bill have
not been preceded by public consultation in accordance with the
Government's Code of Practice on Consultation.[14]
We see no justification for departing from the presumption in
favour of formal, written public consultation, the duration of
which should be no less than 12 weeks. The failure to consult
has deprived Government and Parliament of the opportunity to hear
expert views on the policy of the bill. Other parliaments have
adopted various models for the regulation of ethics and financial
interests of their members. There is little sign that policy-making
in advance of the bill has been informed by careful evaluation
of what has worked well, and less well, in other systems[15].
22. Moreover, this is a bill that should subsequently
have been published in draft to enable pre-legislative scrutiny.
Without such prior scrutiny, or the evidence-based scrutiny of
a Public Bill Committee in the House of Commons (because the Committee
stage was taken on the floor of the House), it is difficult to
see how the policy can have been appropriately informed by expert
and public opinion.
23. We are wholly unpersuaded by the Government's
case for this bill to be fast-tracked. There is an undoubted need
to restore public confidence in the parliamentary system. It is
not, however, clear to us that a cobbled together bill rushed
through Parliament will help rebuild public trust; on the contrary,
if Parliament cannot be seen to be scrutinising proposals with
the thoroughness they deserve, public confidence in parliamentarians
is likely to be further undermined. Governments should find the
strength to resist falling into a temptation simply to see something
done, which is no substitute for properly prepared policy and
legislation.
24. It will ultimately be for the House as
a whole to decide whether the bill should follow a normal timetable,
respecting the minimum recommended intervals between stages of
the bill and following the requirements of Standing Order 47 that
no two stages of a Bill be taken on one day. For our own part
we regret the haste with which the bill is being pursued. In our
forthcoming report on Fast-track legislation we identify a number
of principles which we consider need to be met in order to justify
expediting legislation. We doubt that any of these principles
has been met in respect of this bill. Accordingly we do not think
that the case for proceeding with this bill on a fast-track timetable
has been established and we do not support any curtailment of
the usual legislative timetable.
1 Ministry of Justice Press Release, 23 June 2009,
http://www.justice.gov.uk/news/newsrelease230609a.htm. Back
2
HC Deb, 20 June 2009, col 47. Back
3
"Proposals for Fundamental Reform of the Parliamentary Allowances
System" (19 May 2009), Dep Paper 2009/1474; http://www.parliament.uk/deposits/depositedpapers/2009/DEP20091-474.doc.
This type-written document is signed "No 10". A version
of the document was subsequently uploaded to the Ministry of Justice
website http://www.justice.gov.uk/news/docs/proposals-reform-parliamentary-allowance.pdf.
Back
4
http://www.public-standards.gov.uk/Library/090323_Letter_from_the_PM___Review_of_support_and_
remuneration_for_MPs.pdf Back
5
The review is actually being carried out by a Leader's Group,
chaired by Lord Eames, the terms of reference of which are "to
consider the code of conduct and the rules relating to Members'
interests and to make recommendations" (HL Deb, 21 May 2009,
col 1435). Back
6
http://www.number10.gov.uk/Page19073. Back
7
HC Deb, 30 April 2009, col 1063. Back
8
HC Deb, 19 May 2009, col 1423. Back
9
HC Deb, 20 May 2009, col 1505. Back
10
http://www.parliament.uk/deposits/depositedpapers/2009/DEP20091-474.doc Back
11
http://www.justice.gov.uk/news/docs/proposals-reform-parliamentary-allowance.pdf.
Back
12
HC Deb, 23 June 2009, col 54WS. Back
13
Appendix 2. Back
14
http://www.berr.gov.uk/whatwedo/bre/consultation-guidance/page44420.html.
Back
15
For a review of processes relating to constitutional reform see
our 4th Report (2001-02): Changing the constitution: the process
of constitutional change (HL Paper 69). Back
| 
