The noble Lord, Lord Tyler, ought to reflect that his own distinguished parliamentary career was sadly brought to an end without the necessity for this Bill, without the coercion of the two Front Benches and without these amendments which he has tabled. It was a matter of deep regret to us all, though particularly to him, that that event transpired in the way that it did. The fact is that these amendments illustrate the dangers of the Bill. I hesitate to use the clichés about a slippery slope, but we are on one. Members of the other place are apparently intent on this self-flagellation. There is not much that we can do about that except try to stay their hand occasionally to make sure that the scars they leave on themselves are not too deep.
Lord Forsyth of Drumlean: My Lords, I listened to the Second Reading debate but did not participate because it was one of those occasions where I was not exactly sure what I thought about it. Having read the Bill, I am still not sure, and having considered this amendment, I am completely confused. This amendment is less of a slippery slope and more of a cliff. If the House will forgive me for mixing metaphors, it is also a Pandora’s box. To be fair to the noble Lord, Lord Tyler, I entirely agree with the motors that have driven him to put forward this amendment together with those colleagues who have signed it. It arises from a very important point made by the noble Lord who was the Member for Warrington—
Lord Forsyth of Drumlean: No. It was made on Second Reading. He said that this puts enormous political pressure on—it politicises—the Standards Committee, because of the mechanism.
A noble Lord: Lord Campbell-Savours.
Lord Forsyth of Drumlean: It was the noble Lord, Lord Campbell-Savours. How could I possibly have forgotten his name, when he gave me such a hard time
in the House of Commons? He made an intervention in the Second Reading debate in which he set out the problem with the Bill. I think that that is what has driven the noble Lord, Lord Tyler, to produce these amendments. I do not want to repeat the arguments that were made very well by the noble Lord, Lord Howarth, but this is a huge constitutional change. One of the things that worries me about what is going on at the other end of the corridor is the way in which Members of Parliament are, bit by bit, dissolving their authority and removing the primacy of the House of Commons. This is a step in that direction. If we were to agree this amendment, it would not pass power to the electorate and the voters; it would pass power to the editor of the
Times
and the editor of the
Daily Mail
. I say that in all friendliness to my noble friend Lord Finkelstein.
There is another example of the way in which the independence of Members of Parliament has been altered, and it applies to all parties; I certainly know that it applies in my own party. When I was first elected as an MP, or selected as a candidate, the people who were in Central Office in those days were on my side and wanted to get me into Parliament. I am sure that they are still on my side. They wanted to get me into the House of Commons. However, it would have been absolutely fatal if you went to a constituency and it was thought that the party machine wanted you to be selected. The constituencies were completely independent in their approach. Now, you are not allowed to stand as a Conservative candidate unless you have the signature of the leader of the Conservative Party. That is a huge change in the ability of Members of Parliament to operate in an independent manner.
I refer to the point that I made in an earlier intervention. The idea that someone who has been subject to the process under the Bill will get the signature of the leader of the party to allow him or her to stand again is heroic. What we are doing here is introducing yet another way in which people can intervene and undermine the independence of MPs and look over their shoulders. Whatever the merits of the Bill, the amendment takes that to another level. Although I understand why my noble friend has put it forward, it makes the situation—as the noble Lord who has just spoken indicated—considerably worse.
If we were to take the high ground that the noble Lord, Lord Tyler, has taken, there is one point about Amendment 30 that is striking. Subsection (8) states:
“In making a determination under subsection (7), a parliamentary misconduct hearing may not consider conduct specifically relating to the respondent’s official duties in a ministerial capacity”.
Why are we giving a bisque—a free ride—to Members of Parliament? This is saying that if a Member of Parliament misleads the House of Commons on a crucial matter, that is not a reason for having a petition and is completely exempt. From the point of view of the ordinary electors—I shall not make any party points about whom that might affect—misleading the House of Commons, whether in a ministerial capacity or as a Back-Bencher, is a grievous thing to do. My noble friend has specifically exempted that, which is why, as I pointed out to the noble Lord, Lord Grocott, his example of the Deputy Prime Minister’s abandoning of his oath on tuition fees would not be covered.
If we were to pass this amendment someone in the press would write it up and say that there is a completely free ride for people in a ministerial capacity. A great cry would then go up that we need to amend the Bill —or that we need to have a new Bill to cover this issue —and asking why that issue is not being covered. Bit by bit we would see the disintegration of our parliamentary democracy and of the independence of our MPs. I therefore hope that my noble friend will reject this.
My noble friend the Minister said that this is a matter for the House of Commons, and I have heard it repeated—that we must not interfere, that this is about the House of Commons making its laws. No, it is not. This is about the constitution of our country. If this House has any job whatever, it is to protect that constitution. If that sometimes means protecting the House of Commons from itself, we should not hesitate to do so. After all, if the House of Commons passed an amendment to the Fixed-term Parliaments Act to change the term from five to seven years, would we argue that this House should not intervene? Of course it would intervene. It has a specific duty to do so.
6 pm
Lord Maxton: My Lords, I am reluctant to speak in this debate. I did not take part in the Second Reading debate and I have not even read it, unlike the noble Lord.
I am not clear about this amendment. There are two types of misconduct in the House of Commons. There is a very small number MPs who, for whatever reason, fiddle their expenses and who quite rightly should be done for that. Equally, there are Members of Parliament who carry out acts of misconduct in the Chamber of the House of Commons itself, who for whatever reason refuse to obey the Speaker’s rulings, who refuse to sit down, and who will not give way. I have been in the Chamber when, in the end, the Speaker has sometimes been forced to call the Serjeant at Arms to remove the person. The person can then be given a suspension from the House of Commons which is longer than the 10 days. It would trigger these amendments and trigger this Bill, as far as I understand it.
I recall that my uncle, for instance, accused a junior Tory Health Minister at the time—the man was called Banbury—of being a murderer. He was asked by the Speaker to apologise and withdraw the remark, and he refused to do so. He believed that the matter was one of taking milk away from nursing mothers. His wife had just died, after childbirth, as a result of that. He believed that he was right, to the point that he was suspended from the House. It was almost a sine die suspension, in Glasgow football terms. The suspension was in effect until he came to the House and apologised.
I am not sure that these amendments would cover those sorts of offence. If they do, then it is totally wrong that they do. Such offences are a matter of misconduct within the House of Commons Chamber. They break the rules of the House of Commons. It is therefore for the Speaker and Members of the House of Commons to decide that, not for some outside organisation, such as a couple of judges sitting—who, as others have said, would not be prepared to undertake this task.
Lastly, that same uncle of mine did not object to the First World War. It so happens that he was not a Member of Parliament at the time. He went to prison, not because he was a conscientious objector; he went to prison because he committed an act of sedition under the law. He urged munitions workers in Glasgow to go on strike when the war was on. As a result he was sentenced to a year in prison. If he had been a Member of Parliament, would it have been right that he should therefore have been forced into a position in which he could not be one thereafter? Some people would say that it would have been. In my view, he should not have been forced into this position. He would not have been re-elected in 1918 if he had been a Member of Parliament, because Ramsay MacDonald, who was equally opposed to the war, was not re-elected.
Lord Grocott: He soon got back.
Lord Maxton: He soon got back: I accept that. My uncle would have been elected. It was he who coined the phrase: “Why should we bother counting my votes? Let’s just weigh them, because I know I am going to win”.
Lord Howarth of Newport: My noble friend has talked about an important case, arising from his family history and the history of this country. He has just exposed in the Bill that we are examining the inconsistency and confusion between the powers of the Speaker to suspend and the provisions for recall. Do not these demonstrate the regrettable failure of the House of Commons to examine and amend, thoroughly and satisfactorily, legislation of fundamental constitutional importance, and of fundamental importance to its functioning and future? Is that not a good reason why we in this House should feel entitled, with genuine respect, to offer our advice by way of amendments, so that the damage that the House of Commons is inflicting on itself through this measure may be lessened?
Lord Maxton: I shall finish by saying that I thoroughly agree with that.
Lord Lexden (Con): My Lords, I am glad to add my name to my noble friend Lord Tyler’s amendments. It is obvious to us all that he has devoted much hard work to them. As he explained, the amendments arise in part as a response to an important issue in the report on this Bill by the Constitution Committee, of which I have the honour to be a member. He quoted a passage from the report that I will repeat. It is immensely important:
“The constitutional purpose of recall is to increase MPs’ direct accountability to their electorates: it is questionable whether that purpose is achieved when the trigger is put in the hands of MPs rather than constituents”.
This is a Recall of MPs Bill. My noble friend’s proposals, embodied in his amendments, represent a first attempt in this House to see if it is possible to find a way of enabling the electorate to be more fully involved in the arrangements that can trigger recall without breaching the famous Burkean principles that safeguard MPs’ independence of judgment. The
amendments further develop ideas put forward in another place. They are probing amendments, as my noble friend emphasised. Of course we understand and accept that more work on these amendments would be necessary before Report.
Lord Stoddart of Swindon (Ind Lab): My Lords, like the noble Lord, Lord Maxton, and others, I did not take part in the Second Reading debate on the Bill because I felt that Members of the House of Commons know best how to control themselves and the relationship they have with the electorate. However, having heard other speeches, I agree that it is incumbent on this House to consider legislation and to have in mind the view, in particular, of the House of Commons.
I believe that this amendment is very dangerous indeed, and I am pleased to have heard the noble Lord, Lord Howarth, state that, if passed, it would in fact be illegal. That is because of the Bill of Rights 1689. No doubt the noble Lord, Lord Tyler, has investigated this and we will hear from him later. This amendment is dangerous in respect of the rights and privileges of the House of Commons. Quite frankly, I am getting fed up with the attacks being made on the House of Commons and its Members. All these attacks which describe them as shysters and people who concerned only for themselves do extreme damage not only to the House of Commons but to parliamentary democracy itself. People should remember that Parliament is the protector of the people against unfair government. We and the House of Commons are the protectors of the people. It is therefore very important that we should not denigrate the position of MPs. I believe that this amendment does exactly that. It is unnecessary and it denigrates the position of the House of Commons.
In effect, the House of Commons will decide whether an issue about a Member of Parliament should go to the electorate in a referendum, and I believe that that is the correct way. The amendment suggests that the House of Commons itself is not fit to do that. I repeat: that will undermine the position of the House of Commons itself, of its Members and, indeed, of Parliament. I cannot accept a situation where 500 people who are completely unqualified and lack knowledge, for some reason that is not really injurious to Parliament and to the House of Commons—this has been explained by many speakers in the debate—can introduce a position where judges can interfere in the decisions of Parliament, which of course should be sovereign. If we take away decision-making from Parliament and the House of Commons, they really will cease to be sovereign. For that reason, if the amendment is put to a vote—although I am sure that it will not be—I will vote against it.
Baroness Hayter of Kentish Town: My Lords, in an hour of debate—
Lord Kerr of Kinlochard (CB): My Lords, I want to say just a word in support of what the noble Lord, Lord Forsyth, said against the notion that this is purely House of Commons business. That must be wrong. For example, it would be very useful to know
whether the noble Lord, Lord Tyler, believes that the judicial procedure he has set out consisting of two judges who will consider cases of parliamentary misconduct would be confined only to allegations of parliamentary misconduct at the other end of the corridor. That seems to be rather illogical and therefore his amendment is absolutely our business. Of course, he is proposing the amendment, so he will not agree with that.
The amendment is extremely dangerous for all the reasons that have emerged, and particularly the first reason, which was so well explained by the noble Lord, Lord Howarth. I have to say that I think that the Bill as a whole is extremely dangerous even as it is. Mine is the Burkean principle. Members of Parliament are sent up not to represent the views of their constituents, but to exercise their judgment. They are chosen on the quality of their judgment, so for all those reasons the Bill is defective.
The only speech in this debate which has surprised and disappointed me was that of the noble Lord, Lord Finkelstein, for whom I have enormous respect. I think that he has been lunching too often with that chicken.
6.15 pm
Baroness Hayter of Kentish Town: I apologise for leaping to my feet too quickly. I was going to say that in over an hour of debate the amendments have found no favour in the Committee, other than from those who added their names to them, and I will not alter that in what I say now. Having heard the name of Bernadette Devlin, I am going to share a secret with the small gathering in this Chamber. I was not actually born blonde. It may surprise noble Lords to hear this, but I looked very much like Bernadette Devlin. When walking around London I was for ever being stopped and I had interesting discussions. It is a long time since that has come to mind.
It is clear that the noble Lord, Lord Tyler, has devoted a great deal to these amendments but, in the words of the last two noble Lords to have spoken, they are, if not dangerous, certainly full of major problems. The amendments would catapult relatively minor misdemeanours well above our legal means of resolving alleged wrongdoings—and that starts with only 500 signatures. I could certainly get that number on a Saturday morning in busy Kentish Town. That would bring an MP not simply to the police, to the DPP or even to a magistrates’ court to see whether there was a case to answer, but up and over all of that to a judge, possibly on the basis of no evidence—simply following an allegation. The allegation would not have to be tested or proved at any level, nor would any suspicions have to be verified. Indeed, the issue could be entirely without merit and without evidence. It could be based on mistaken identity. Moreover, if the complaint against an MP is not criminal, why on earth would it go before a judge-led hearing? I assume it would not be criminal because the amendments state that the hearing would,
“be suspended if any of the matters under consideration are the subject of criminal investigation or criminal proceedings”.
I think that means that we are talking about something which is not even criminal, yet it would go to a higher level than things that would normally go to a magistrates’
court and be tested by a presenter or a prosecutor. I really do not understand why this is being taken to that level. What the amendments will do is up the ante, if you like, of misdemeanours to above the criminal, and straight before not just a single judge but a double-judge hearing. As a former magistrate, I find that quite difficult to understand. We were able to hear many cases of criminal wrongdoing and even indictable offences to see whether there was a case to answer. However, there would be no such filters on this.
There are also big questions which have already been touched on as to rules of evidence, legal representation, hearsay evidence, cross-examination and the disclosure of previous convictions. These are big issues. To bring someone in front of a court—the word “trial” has been used—on the basis of nil evidence is extremely worrying. The amendments would even force witnesses to attend, at the risk of being in contempt of court. As a magistrate, I do not believe that I had the right to do that. This is a heavy sledgehammer to use on what might be a completely unproven allegation, and certainly something of a non-criminal nature which otherwise would be dealt with separately.
What is this misconduct? If it is not a crime and it is not being dealt with by the police, what is it? Is it non-appearance, because people have said that they would not come? Is it about an MP being in Barbados for the past 11 months, although in the current weather I would quite understand if they were over there? What is the nature of bringing Parliament into disrepute? I see no merit at all in these amendments, and the speeches so far probably concur with that. I trust that we will not see them back at the Report stage.
Lord Gardiner of Kimble: My Lords, yet again we have had a thought-provoking and thorough debate. I acknowledge the work that my noble friend has devoted to this matter. As your Lordships know, the amendments are a modified version of those brought forward in Committee and on Report in the other place. The underlying principle behind involving the public in initiating the recall process for reasons of misconduct did indeed attract some support in the other place. Although I know that I shall not receive the approval of the noble Lord, Lord Grocott, it is interesting to see that these amendments were rejected in the other place by 271 votes to 64.
My noble friend’s Amendment 2 would remove the first and second recall conditions yet retain the third. The proposed new clauses create the concept of a parliamentary misconduct hearing, which would involve two judges examining the behaviour of an MP if the hearing received a petition alleging certain forms of misconduct that had been signed by 500 constituents. The parliamentary misconduct hearing would not be required to determine guilt to a criminal standard but rather whether parliamentary misconduct had on the balance of probabilities taken place. The noble Lord, Lord Howarth of Newport, highlighted this.
Turning to some of the detail of the amendments, the number of petitioners necessary for the parliamentary misconduct hearing to consider the allegation has been proposed at 500. The aim is to give the public some involvement in initiating the process. Of course,
if it is alleged that a criminal offence has been committed, it takes only one person to make a complaint for that to be investigated by the police, for instance. Arguably, if the complaint is valid it should be taken forward regardless of the number of complainants. On the other hand, as a test of public will, is the number of 500 constituents perhaps too low? My noble friend has explained in detail the behaviour that the parliamentary misconduct hearing is being asked to judge. I am not going to outline that further, given the time.
Criminal matters, which could include bribery and misconduct in public office, as well as offences relating to parliamentary expenses, would be investigated by the police and adjudicated by the courts. However, my noble friend proposes that criminal convictions and prison sentences should not be a trigger for recall, except for offences regarding parliamentary expenses. The trigger my noble friend proposes is a finding by the hearing that on the balance of probabilities the misconduct took place—a lower standard of proof than that used in criminal cases.
Matters that fall under the Code of Conduct can be examined by the Parliamentary Standards Commissioner, the Standards Committee and the House of Commons, which can order suspension. The proposals in the Bill are that a suspension of more than 10 sitting days could trigger recall. My noble friend’s amendments would not prevent investigation by the Parliamentary Standards Commissioner or the Standards Committee or suspension from the House taking place; they would simply decouple it from recall. So there could be a parallel process of investigation by the commissioner, the committee or the House, and a parliamentary misconduct hearing—all of which, of course, could reach different views.
I turn to parliamentary privilege, which was first raised by the noble Lord, Lord Howarth of Newport. In addition to the proposed parliamentary misconduct hearing set out in these amendments, there are the serious concerns that noble Lords have quite widely expressed vis-à-vis the interaction with parliamentary privilege. For the parliamentary misconduct hearing to have any real effect, it is likely that the judges appointed to determine misconduct would need to question proceedings in Parliament and would need to examine issues that are covered by exclusive cognisance; that is, that Parliament has sole jurisdiction over its own affairs, including standards and discipline. As the noble Lord, Lord Howarth of Newport, identified, that would be contrary to the protection afforded by the Bill of Rights; for example, the provisions in the amendments would give a role to the hearing to examine breaches of MPs’ conduct, which would impinge on exclusive cognisance.
It is also proposed that the parliamentary misconduct hearing would be able to look at issues such as cash for questions, attendance in the House and abusing or bringing into disrepute the office of a Member of Parliament—all matters which are to some extent likely to be covered by privilege. The provisions also set out standards for Members of Parliament by defining parliamentary misconduct as non-attendance in a six-month period. However, the amendments are silent on the interaction with parliamentary privilege.
Of course, Parliament does possess the ability to allow a hearing to deal with matters that fall under its exclusive cognisance, and to question proceedings in Parliament. However, if we are to take such a momentous decision, we should be fully aware of what we are doing, and there needs to be an overriding reason to do so. The problem the Government face is not being convinced that either of these conditions has been met. The type of wrongdoing covered by this alternative trigger already triggers a recall petition under the conditions in the Government’s Bill. The triggers in the Government’s Bill, whether noble Lords like the Bill or not, are intended to fit in with the disciplinary and constitutional arrangements of our Parliament.
I turn to the relationship with criminal prosecution. While the amendment contains a provision to allow for the suspension of a hearing in the case of a criminal investigation or criminal proceedings, it may be that these would be initiated only due to testimony in or judgment of the hearing. In the case of alleged criminal misconduct, if the defence had already been rehearsed before a parliamentary misconduct hearing, or the hearing’s finding was considered prejudicial to the MP’s presumption of innocence, it may not be possible for the MP to have a fair trial. The fact that an MP had to answer allegations in a parliamentary misconduct hearing could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.
I am very conscious that my noble friend has devoted a lot of time and work to putting forward his amendments, given some of the background to why we are where we are. I hope your Lordships will understand that we feel there are very serious matters, which your Lordships and I have endeavoured to outline, that are of sufficient concern that I ask my noble friend to withdraw his amendment.
Lord Tyler: My Lords, I am very grateful to my noble friend the Minister for his careful response to our probing amendments. Perhaps I should put on record that, as I understand it, as far as both the circumstances to which the noble Lord, Lord Maxton, and my noble friend Lord Forsyth referred are concerned—in one case, the suspension of a Member in the House of Commons—absolutely nothing changes in the Bill as it stands, or in my amendments. It is as it was and would continue to be. In the case of any Member—Minister or not—misleading the House of Commons, there is a very clear process for what then happens. I do not think that is affected by the Bill. It certainly is not affected by my amendments.
There has quite properly been a discussion about the relationship of our set of probing amendments to the Bill of Rights—
Lord Forsyth of Drumlean: I apologise for interrupting. My noble friend says that the amendment does not affect that. The amendment states:
“In making a determination under subsection (7), a parliamentary misconduct hearing may not consider conduct specifically relating to the respondent’s official duties in a ministerial capacity”.
So if, as a Minister, he has misled the House, is that not a “get out of jail free” card?
Lord Tyler: It certainly is not, because it is covered by quite different regulation and control: the code of ministerial conduct. It is the responsibility of the Member concerned, whether a Minister or not, if he or she misleads the House of Commons, it is still exactly the same position; it is not affected by the Bill. If it was necessary for avoidance of doubt to make that clear, we could obviously do so.
Baroness Taylor of Bolton: I understand what the noble Lord is saying about the Code of Conduct, but that would not trigger recall.
Lord Tyler: That is exactly what I am saying.
Baroness Taylor of Bolton: Therefore, Ministers are being treated in a different way from Back-Benchers.
6.30 pm
Lord Tyler: As the noble Baroness will know from her ministerial experience, they are already under the Ministerial Code—properly so. I want to turn to the critical issue, which is of course the one raised by the noble Lord, Lord Howarth, about the Bill of Rights, parliamentary privilege and exclusive competence. I am not a lawyer but I experienced—or suffered, whichever way one wants to say it—two years, I think, sitting on the Joint Committee looking at the issue of parliamentary privilege. As a result of that experience, I contributed to the discussions in this House when we were looking, after the expenses scandal, at the whole issue of IPSA.
What is absolutely clear—my noble friend the Minister effectively made it clear again today—is that if Parliament decides that parliamentary privilege should be constrained in a particular respect, it is up to Parliament to make that decision. That is what the Bill is already doing, to some extent, without my amendments. The noble Lord is quite right that there are implications for parliamentary privilege, but it is not a yes/no or a black/white situation, it is up to Parliament to decide if and when it wants to constrain and restrict its own position in relation to parliamentary privilege.
Lord Howarth of Newport: I am not a constitutional lawyer either, but would the noble Lord agree that the House of Commons now bitterly regrets the passing of the legislation establishing IPSA?
Lord Tyler: I am not sure that the noble Lord was here during the debate on that Bill, but I was and took an extensive part in the debate. I was very concerned about a number of elements, including the way in which MPs seemed to be all too easily restricting their own responsibilities in terms of exclusive cognisance.
I want to go back to the whole rationale for trying to find a route in this particular direction. My noble friend Lord Forsyth, who was as generous as ever in recognising the contribution to the work of this House of his coalition colleagues, identified very precisely that there was a recognition throughout the House at Second Reading—as was made so clear by the Constitution Committee—that putting this new
responsibility on the Standards Committee was a serious weakness in the Bill. That is where we are coming from.
My noble friend the Minister has been very generous in his response but there has not been any government reaction to that very serious weakness. Frankly, I do not think that this is a good Bill, but it is made even worse by the responsibilities and the danger of serious politicisation of what has previously not been a political process in the Standards Committee—again, I regret very much that the noble Lord, Lord Campbell-Savours, is not here.
Lord Hamilton of Epsom (Con): I thought I remembered the noble Lord, Lord Campbell-Savours, saying quite distinctly that there was an awful lot of political interference in the Standards and Privileges Committee, which he was on for a long time.
Lord Tyler: He made it absolutely clear, as would other noble Lords who were there, that the way in which the Bill will now act—if it goes through in its present form—lays an additional and very dangerous responsibility on that committee, with all the potential damage there might be. I say simply to my noble friend the Minister that I have done my best, with my noble friends—I am very grateful for their help and that of other Members of the House—to try to find a solution to the problem that our Constitution Committee put its finger on. We cannot simply walk away from that. As so many Members have said, from all sides of the House, we have a responsibility, in this respect, to save the House of Commons from itself. This part of the Bill is a mess. I do not pretend that my solution is the final answer, but just ask my noble friend the Minister to think again between now and Report to see whether we can find a better way to deal with this particular problem. In the mean time, I am happy to withdraw the amendment.
Lord Foulkes of Cumnock: My Lords, this has been an interesting diversion down the highways and byways of Liberal land. Fortunately, it has come to a dead end. We now come to a large number of amendments, which illustrate the practical problems arising with the Bill. I say to all Members, but particularly to the noble Lord, Lord Finkelstein, who has been assiduous in his attendance today, that some of my amendments are probing amendments. If he, or indeed any noble Lord, should find any contradiction between one and another of them, it is entirely because they are there—I say this to both Ministers as well—to explore the issues rather than to be definitive as to what either I or the other signatories believe.
I will speak to the other amendments that are in my name and in the name of some of my colleagues, but the first amendment states:
“Page 1, line 13, after ‘Kingdom’ insert ‘or elsewhere’”.
The clause refers to an MP having been,
“convicted in the United Kingdom of an offence and sentenced or ordered to be imprisoned or detained”.
It is limited to the United Kingdom, but it is not clear why the conviction of the MP is limited to convictions in the United Kingdom. This is quite a good amendment, because I did not draft it. It was drafted by the Law Society of Scotland, which, as my noble friend Lord Forsyth will know, is a very reputable group of people. It has pointed out:
“The Representation of the People Act 1981 s1 disqualifies a person from membership of the House of Commons where the person is found guilty ‘in the United Kingdom or elsewhere’. If an MP commits an offence in another jurisdiction, which is serious enough for that MP to be sentenced and ordered to be imprisoned or detained, is that offence not serious enough to trigger recall? There may be issues concerning the rule of double criminality but limiting the first recall condition to offences punished in the United Kingdom could create unexpected results”.
Any Member of this House might get up and say, “Well, what about an offence committed in Saudi Arabia or some of these other authoritarian countries?”. That is a very good question—I am reading people’s minds in suggesting that they might get up and ask that. But if that applies to this Bill, why does it not also apply to the Representation of the People Act 1981? All we would be doing is bringing it into line with that Act. If it is wrong, and we are worried about these regimes that might not be our favourite regimes in terms of the rule of law for this Bill, why are we not worried about it in the Representation of the People Act 1981? I hope that the Minister in his reply, and indeed my colleague on the Front Bench for the Labour Party, could indicate whether or not they now think that an amendment to the Representation of the People Act 1981 would be necessary if this amendment is not accepted for this Bill. We should have some parallel or some—what is the word I am looking for?
Lord Howarth of Newport: Consistency.
Lord Foulkes of Cumnock: Consistency, thank you. That is the second time that my noble friend has assisted me this afternoon—and for no charge. We need some consistency in relation to this. That is Amendment 3.
Lord Howarth of Newport: Before my noble friend moves on from the issue of consistency, does he find our constitution characterised by consistency? Does he see it as a bulwark and constitutional principle that we should seek at all costs to conserve?
Lord Foulkes of Cumnock: That is a very good question. I could spend an hour or two on that, although the Minister and other noble Lords will be pleased to know that I will not. We could start with the constitution of the United Kingdom and talk about the total inconsistency between one part and the other. That would take us down the highways and byways—not the Liberal ones on this occasion, although it could perhaps be some of them. Instead, I move to Amendment 13.
The clause that this relates to deals with two further provisions to the first recall condition, referring to imprisonment and detention following an offence.
It deletes a proviso which states that the first recall condition includes offences committed before the MP became an MP. It also deletes a proviso which states that the first recall condition does not include offences committed the day before this section comes into force. Acute Members will notice that Amendment 16,
“Page 2, line 24, after second ‘MP’, insert ‘unless that offence was disclosed before the MP became an MP’”,
contradicts the one to which I have just referred. I am sure the noble Lord, Lord Finkelstein, would have jumped up and pointed this out if I had not done so myself. It attempts to amend the subsection that the previous amendment deletes, so if we had deleted it, we could not have amended it. It gives the House an option.
The reasoning for this amendment, which was also provided by the Law Society of Scotland, is that Clause 2(1) elaborates the reference to an offence in Clause 1(3) as including an offence committed before the MP became an MP. If an MP was elected by the constituents after he or she had been convicted and sentenced for that offence, there should not be a recall because he or she was already elected in the full knowledge that that offence had been committed and that he or she had been sentenced for it. I am not talking about where there might be an appeal or whatever but where the matter had been dealt with. That would be clear because the constituents must have known about the MP’s offending history prior to the election but nevertheless elected that individual. I do not see any reason why these two amendments from the Law Society of Scotland cannot be accepted.
The more difficult one for the Government to accept might be Amendment 4. This relates to the first of the two criteria—that the offence must have resulted in a sentence of imprisonment of more than a year. Noble Lords will know that, under the present arrangement, if Members of the House of Commons and, indeed now, of this place are sentenced to more than a year, there is automatic exclusion. That is part of our provision in this House. It is part of the provision in the other place. The point I want to raise is that it is not whether it is a year or 18 months or six months, it is a question of who decides. Should it be this House or the other place that decides in relation to the Members of this House or the other place, or should this cumbersome, expensive, complicated recall mechanism be enforced? Why, if it is less than 12 months, should it be this complicated, expensive trigger mechanism, but, if it is more than 12 months, we are able to deal with it ourselves? Why can we not deal with all of them ourselves? Would it not be more sensible for us to deal with Members of this House who are convicted, whatever the length of their sentences, and for Members of the other place to deal, equally, with their Members, irrespective of the length of their sentences? What is magic about one year? What is special about one year? We will come to this in relation to other amendments later on. What is the logic behind it? There is no logic.
Lord Grocott: I raise with my noble friend a practical point that he might be about to address. If a sentence of less than a year becomes the law, it could trigger a petition and then the petition could lead to a by-election. My advice to any Member of Parliament facing this
kind of situation—it might be for the good reasons of principle that several noble Lords have referred to—would be to bypass the whole question of a petition being raised to call for a by-election. The sensible thing to do would be to resign the seat immediately, which we know from Clause 5 would cancel the whole mechanism of petitioning and recall, and, rather than go through all that rigmarole and all the publicity that might be associated with it, say, “Right, I am probably going to be subject to a recall in any case, so I am going to resign the seat and make the whole section of the Bill redundant”. That would certainly be my advice, so let us get it out.
6.45 pm
Lord Foulkes of Cumnock: My noble friend has put his finger on it precisely. That shows exactly the problems arising and why these provisions are not only cumbersome and expensive but complicated and very difficult to deal with. They also provide let-out mechanisms, as my noble friend has described.
I would like the Minister to address two further points which are not specifically included in the amendment but which arise. I was a magistrate for a few years in Edinburgh and I sent people to prison. I had the option of fining them or giving them a custodial sentence. I always made the judgment on the recommendations of the clerk or the social worker or on whatever advice I got on the basis of the circumstances and the facts presented before the court. I made that judgment because I knew that to look at it in a completely impartial way was the right thing to do. If, in addition, I had been dealing with, for example, a Member of Parliament appearing before me, and I had known that, if I had imposed a custodial sentence, this recall procedure would have happened, it would have affected the way in which I decided. Supposing I was doing it, and it was a Conservative Member of Parliament, there might have been some feeling that I should show how reasonable and sensible I was and give them a fine rather than a custodial sentence. It does seem strange that these kind of judgments might be affected because of this.
Lord Tyler: Does the noble Lord acknowledge the point he has just made is also material to members of the Standards Committee deciding how long or how short a suspension should be? This is precisely, if I might just point it out gently to him, why I raised the concerns I did in the previous debate.
Lord Foulkes of Cumnock: Indeed, and the noble Lord will realise it is coming up in subsequent amendments that I have tabled along with my noble friends Lord Campbell-Savours, Lady Taylor and Lord Hughes. Like the noble Lord, Lord Tyler, I am deeply sorry that the noble Lord, Lord Campbell-Savours, will not be here to move those amendments. One of us is going to have to move them on his behalf. He made these points at Second Reading, and he would have made them again, and we will make them on his behalf later. It is exactly the same point. It introduces a different factor, a complicating factor, to the decisions that are being made.
Lord Forsyth of Drumlean: While the noble Lord is in explanatory mode, I have something to ask him. I entirely understand the noble Lord’s point about the amendments which have come from the Law Society, but, before he moves on, I am not sure I understand what he is saying. If he wants to make an amendment so that the recall petition would be triggered only with a sentence of more than a year, is he also proposing—it is not on the Marshalled List, so is it implied—that the current position, which makes it automatic that you are expelled from the House of Commons, would disappear? Clearly it would be absurd to have a recall process started when the Member had already been kicked out of the House of Commons. What is the noble Lord suggesting? Is he suggesting that the one-year sentencing rule, which is automatic, would fall if this amendment were agreed?
Lord Foulkes of Cumnock: I said in my introduction that astute Members of this House would immediately or eventually detect some inconsistencies in what I was proposing. I congratulate the noble Lord on doing so. This is very much a probing amendment.
Lord Forsyth of Drumlean: What is your view?
Lord Foulkes of Cumnock: My view—I think I said this—is that the recall procedure is daft. It is expensive, complicated, and all of it should be dealt with by both Houses for their own respective Members. We should throw this out and go back to the House of Commons and let it decide in relation to people who have been sentenced for less than a year or more than a year. I think it is right that they should be dealt with by Parliament, not by this kind of recall procedure. I put the amendment in precisely so that it could be discussed.
Lord Grocott: Is not my noble friend, in wrestling with these amendments which attempt to improve the Bill, just illustrating the difficulty that all of us feel who know that this is a bad Bill? May I suggest the answer that he should be giving; that is, it would be far better to leave the law as it is, which is that if you are sentenced to more than a year, then “You’re out, mate”, and if it is less than a year, then the chances are that it is something which existing procedures would deal with in any case—perhaps the informal procedures of parties, that would not re-endorse a Member of Parliament? There are all sorts of mechanisms of that sort which in practical terms come into play. The real lesson is that we are trying to make a silk purse out of a sow’s ear, and we just have to do the best we can.
Lord Foulkes of Cumnock: I could not have said it better myself; in fact, I did not say it better myself. That was an excellent explanation of it with which I completely concur. I tried to say that with increasing degrees of inability to do so.
My last question to the Minister is equally serious. Let us suppose that someone is given a suspended sentence. Does that count? It would be perfectly possible for me to say, when the noble Lord, Lord Finkelstein, appeared before me, “I sentence you, Lord Finkelstein, to a year in a prison, but I’m going to give you a
chance and I’m going to suspend the sentence to see if you behave for the next year. If you behave, then that sentence will not be imposed”. Would that apply? I am not clear whether suspended sentences are counted in relation to the Bill. There is no guidance. It is just something that occurred to me. No doubt there will be many more problems in relation to the Bill which will come out during not just this discussion but if, heaven forbid, the Bill was to be triggered—to use that awful word—which we all hope it will not be.
Amendments 4 and 13 are probing amendments, but Amendments 3 and 16, which have been drafted by the Law Society of Scotland, are serious and important, because there is that inconsistency about offences committed overseas and there is also the question, raised in the second Law Society amendment, about offences committed before a general election. If the Minister cannot accept the amendments today, I hope that he will say that he will have a look at them between now and Report and see whether these two problems might be properly dealt with. I beg to move.
Lord Finkelstein: My Lords, I very much hope that if I am ever accused of a serious offence, the noble Lord, Lord Foulkes, will not be the judge. I want to run through a list of offences for which you can be sent to prison for less than a year: assault with intent to resist arrest; assault on a police constable in the execution of his duty; racially aggravated common assault; domestic burglary; fraud; false accounting; and sexual assault—this is obviously not a full list. In other words, it is possible to be sentenced for very serious offences for less than a year. All that this Bill does—and it is a very simple Bill; it is not, as has been repeatedly and falsely suggested a complicated, burdensome, cumbersome and expensive Bill—is to provide the general public with a simple mechanism which allows them to remove Members of Parliament should they see fit in circumstances that are limited in it. There are a very few common-sense circumstances in which people would expect to have such a power. We have discussed at great length today many ridiculous ideas which are not in the Bill and said how strongly we are against them, and I think that we can all agree that we would be against them if they were in the Bill or if anyone proposed them in future Bills. Therefore, there is great unity in the Committee on the subject of hypotheticals.
However, if we confine ourselves to the subject of what is actually in the Bill, is the House of Lords seriously saying to the general public, at a moment of disillusion with politics, that we wish to deny a limited range of powers to them which would be available to the boss of any employer in any company and would be used in the circumstances set out in this Bill?
Lord Grocott: As the noble Lord, Lord Finkelstein, is saying that we need to be in the real world rather than dealing in hypothetical examples, could he give the Committee some examples of Members of Parliament, let us say in recent years, who would have been caught by this less than a year’s sentence of imprisonment triggering a recall, so that we can have some idea of the evil that we are now trying to put right?
Lord Finkelstein: As the noble Lord is well aware, there have not been very many such Members of Parliament and they have resigned, and I suspect that that will happen. That is not an argument to suggest that this power would not be used. From the noble Lord’s own Front Bench, it was correctly stated that it is very much to be hoped that the Bill would not be required to be used very frequently, but cases have often come before the House of Commons where a Member of Parliament has, for instance, used the House of Commons facilities to promote their travel company or employed members of their family in the House of Commons and been given suspensions that would fall under the Bill, which currently the power does not exist to cover. While there may not have been many instances in recent years that are covered in the Bill where people have not resigned, that does not mean that the power would not be valuable.
The issue has been raised of Members of Parliament who are sentenced to jail on issues of conscience and whether it is right that a recall mechanism be available. It may not be right to provide for a situation in which those people are automatically expelled for that act, but it is certainly right to provide the electorate with the limited power to review the conduct of that Member of Parliament in the light of them committing the very serious act as a Member of Parliament of defying the laws that they have created.
Lord Forsyth of Drumlean: My noble friend is clearly passionate in support of the Bill. Could he deal with the point, which I have made twice previously, that in the real world, in practical terms, where a Member of Parliament found themselves in this position, it would be highly unlikely that the leadership of a party would sign and allow them to stand again as a party candidate? Therefore, there is no opportunity for the electorate to take a view if they wish to be represented by a particular political party as opposed to a particular individual.
Lord Finkelstein: I think that this is a misunderstanding. The leader of the party has to sign to allow them to use the party logo in an election, and they may not be permitted to stand for a political party, but that does not prevent them standing in a by-election. I suspect that if Jimmy Maxton had run in that election, he might well have received the signature of the leader of the Labour Party, but in other circumstances it might have been withheld. It does not prevent someone running again in the election; they are not denied this chance; and the electorate are not denied the opportunity to support them. It just means that they will not be allowed under their party act to run as a party candidate.
Lord Maxton: The fact is that Jimmy Maxton would not have required, and would not have got, Ramsay MacDonald’s signature on any candidature; he was selected by the ILP in Bridgeton to be the candidate.
Lord Finkelstein: And he could run as a candidate, if he wished, in an election, and could receive or not receive his party’s support; I am arguing just that the electorate should have the opportunity to decide, in circumstances in which someone has decided to defy
the law, whether to continue to support them as a Member of Parliament. This power will not be imposed on Members of Parliament against the wishes of the electorate; it is a power granted to the electorate. What we have to decide as a House is whether it is reasonable that the electorate be given a limited power in certain circumstances that they can use to enforce standards. I believe that that power is reasonable and limited.
Lord Forsyth of Drumlean: I am sorry to pursue this—perhaps I have just misunderstood the Bill, as the noble Lord suggests—but if someone finds themselves in circumstances where there is a recall and there is going to be a by-election, certainly in the Conservative Party you cannot stand as a Conservative candidate unless you have the signature of the leader of the party. That is how it operates. I do not know about other parties. The Liberal party is a bit looser in its arrangements—
Lord Forsyth of Drumlean: Democratic—that is the word I was searching for; of course it was. In the Conservative Party you would not be able to stand. If there is no Conservative candidate standing in the by-election—if the person subject to recall is not the Conservative candidate—there will be a Conservative candidate. Therefore, the opportunity for the Member to make his case before the electorate to continue as the Conservative MP will have been lost. Am I missing something here?
7 pm
Lord Finkelstein: No, the noble Lord is not missing anything, but he is failing to add the question of why that would be wrong. If a Member of Parliament is recalled, it may be that their party stands by them because of all the honourable reasons that have been suggested might hypothetically happen; if, however, they have been recalled because they have decided to promote their travel company by using the facilities of the House of Commons, the Conservative Party might not decide to stand by such a candidate. The candidate would still have the right to run by themselves. I do not think that the noble Lord has misunderstood it, but perhaps I have not understood why the noble Lord would regard that as a flaw in the Bill. It seems to me an advantage that has been programmed in, rather than a bug.
Lord Forsyth of Drumlean: I regard it as a flaw in the Bill because the point that my noble friend has been making throughout this evening is that it should be a matter for the electorate to decide whether or not they are going to take whatever the offence is, or whatever has caused this, as one which would prevent them from re-electing that person as their Member of Parliament. I am saying that in practical terms, if someone has got themselves into that kind of trouble, they are going to be out anyway because the parties are not going to support them. Therefore we are going through a very expensive process which will generate lots of publicity and lots of difficulties, and the end result will be the same as it would be under our existing procedures.
I am not sure what the problem is that we are trying to solve. If someone has fiddled their expenses or run a travel company or whatever, first, the whip is going to be withdrawn and, secondly, they are not going to be able to stand as a candidate for a particular party and they are not going to get re-elected. My noble friend seems to be arguing that we need to have a complex procedure that gives them the second chance to challenge what would have happened anyway.
Lord Finkelstein: I actually used those examples for a reason. The whip may have been withdrawn, but those people did not have to resign from Parliament and remained in Parliament until the end of the period, whereas if they had been employed by anybody else they would not have been able to do that. This power exists to enforce that which does not exist at the moment. In other words, I used precisely the examples—in the case of the travel company and the family member—where those Members stayed until the end of the Parliament, and would not be able to unless their electorates were willing to allow them to.
Lord Cormack: Is my noble friend seriously suggesting that a Member of Parliament is employed by his constituents? That is totally contrary to the constitutional doctrine of Parliament.
Lord Finkelstein: I am absolutely suggesting that.
Lord Soley: I intervene very briefly with a very short contribution. It follows what the noble Lord, Lord Finkelstein, is saying. The flaw in his argument is something he said some minutes ago, when he said any employer would have these powers in a private company. The mistake he is making is to assume that Parliament is like a corporate body. That assumption underlying his speech is a serious flaw because Parliament is and must be different. It must answer only to the electorate. The whole thrust for the past few hundred years in this country is that we have general elections when Members are elected to do their job as an elected representative, and that is it. We have already done too much of this—perhaps the noble Lord is following a tradition that has unfortunately developed in recent years where we are constraining the power of Parliament and treating it as though it is a corporate body, when in fact it is not.
Lord Finkelstein: Naturally, I am not against the power of Parliament to do dignified things. I am against allowing Parliament to do some of the things that this Bill would provide redress to the electorate to do. The power of recall does not belong to anybody else except to the electorate. The electorate will determine whether somebody is recalled. The electorate will determine the result of the by-election, and nobody else. The relation to Parliament, of course, must be independent on political grounds and on political issues. But the Bill proposes limited circumstances which have real effect, and have taken place—as in the examples I gave suggested, where Members of Parliament have remained in the House without challenge by the electorate. This Bill would enable the electorate to have the powers they ought to have.
Lord Cormack: My Lords, in response to my brief intervention, my noble friend said that he regards MPs—he said, “I was precisely saying that”—as being employed. Now this is standing our constitution on its head. Words almost fail me to describe my abhorrence, shock and dismay at my noble friend suggesting that the other place comprises 650 employees. That really is extraordinary.
Lord Finkelstein: For words to fail the noble Lord, this really is a serious crime.
Baroness Hayter of Kentish Town: My Lords, first, I will answer one question. This does indeed cover suspended sentences, which is clear in the Bill. I am surprised—my noble friend normally reads every jot and tittle in it—but it covers suspended sentences as well.
Lord Foulkes of Cumnock: Perhaps my noble friend could draw my attention to exactly where.
Baroness Hayter of Kentish Town: I need notice of that question—and he is my noble friend! I believe that the Minister will have the actual paragraph by the time he comes to reply.
Amendment 3 would allow a conviction and imprisonment outside the UK to count as a trigger. My noble friend Lord Foulkes hinted that he knew someone would raise the question of Saudi, as indeed I will do. I am sure that he does not mean that someone who was perhaps a transgender person driving a car in Russia, which we have just learned is going to be unlawful, or a woman driving a car in Saudi, or indeed a gay person in Iran or Nigeria who is imprisoned, should trigger a recall in this country—
Lord Hamilton of Epsom: That is obviously one example, but how about the paedophile in the Philippines or somebody who is drug-running in some country that has a reasonable legal system?
Baroness Hayter of Kentish Town: I was about to come to another example and say that that does not prevent the Standards Committee considering whether that brings Parliament into disrepute. The option is still there, but it is not mandatory. I think that is the right way of approaching it. I heard on the “Today” programme yesterday—the Deputy Prime Minister had not heard of it at the time although by lunchtime he had and he condemned it—of someone being flogged 1,000 times in Saudi. Well, if that person happened to have been one of our MPs and was imprisoned as well, that again would automatically trigger recall under this amendment. I am sure that is not what would be wanted. The ability for it to be considered under the other mechanism is still there but it would not be automatic.
Lord Forsyth of Drumlean: Surely the Standards Committee would not be able to address it, because the first recall condition would not have been met. Is not the answer to this—perhaps with a bit of drafting— that one looks at offences outside the United Kingdom which would be considered offences in this country? Surely the point is right that if someone has committed
a serious offence elsewhere, which would be a serious offence here, and has been convicted, as my noble friend said, it is an enormous loophole in the Bill, given its intent—not that I particularly favour the Bill.
Baroness Hayter of Kentish Town: Undoubtedly there will be cases and jurisdictions where we would be very content to take that, but there will be others—sadly, probably more around the world—where we would query both the jurisdiction and the sentencing. I do not feel that making it automatic, as this amendment would, should be supported. As has been made clear, Amendment 4 conflicts with the current situation in that, if I have understood it correctly, it would trigger recall following a year’s imprisonment. As my noble friend accepts, that was not its aim; it is a probing amendment. I differ from my noble friends Lord Foulkes and Lord Soley in that they want to keep the decision only with the House of Commons, whereas we have supported the proposal that there are circumstances where it should go to the electorate. Giving the electorate a say following someone’s imprisonment—possibly for a very serious offence—is something that we have supported and continue to support.
The other difficulty that I have with what I understand came from the Scottish Law Society—I am sorry if I offend it by not supporting its amendments—is the idea that if an offence, not a conviction but an offence, was declared beforehand, that will be enough to enable someone to escape the possibility of a recall petition. We could have someone saying before being elected an MP, “Well, it is true that I have been arrested for a bit of a punch-up”. That is declaring the offence. However, the conviction may take place sometime afterwards, by which time we discover that actually he had broken his wife’s arm in three places, kicked in the door, set fire to the carpet and broken her favourite records, but that was all a minor punch-up. I do not think that we would want to excuse someone just because they have said, “Oh, I am in trouble with the law”. The word “offence” is used rather than “conviction”. I do not think that there should be letting off at that stage.
As my noble friend says, these are on the whole probing amendments and useful for that, but I do not think that we should move to allow another jurisdiction automatically to trigger a recall in this country.
Lord Gardiner of Kimble: My Lords, perhaps before I turn to the amendments of the noble Lord, Lord Foulkes, I may speak to the government amendments, to which the noble Baroness, Lady Hayter, has put her name.
Amendment 15 gives effect to the opposition amendment from the other place. Clause 2 contains further detail to clarify the sentences and orders that would meet the first condition under which an MP would be subject to a recall petition—that is, where an MP has been convicted in the UK of an offence and is sentenced or ordered to be imprisoned or detained and the appeal period has expired without that being overturned.
As introduced in the House of Commons, subsection (1) ensures that offences committed before the MP became an MP can trigger the opening of a
recall petition, as long as the conviction and sentencing take place after the day on which the MP became an MP—but only if the offence is committed after the day on which Clause 1 comes into force. That would rule out historic offences triggering a recall.
The House of Commons was clear that it wished historic offences to be caught as well, as long as the conviction took place after the Bill came into force and after the MP became an MP, and voted with that intention, passing an amendment tabled by the Opposition Front Bench in the Commons by 236 votes to 65.
A pair of amendments was tabled to give effect to that intention: a substantive amendment and a paving amendment. Unfortunately, however, only the paving amendment was actually made, which had the effect of deleting the words “the reference” at the start of Clause 2(1) so that it does not now make sense. The substantive amendment was not made, so the Government tabled Amendment 15 to give concrete effect to the will of the House of Commons.
Amendment 20 is a minor and technical change to the definition of “appeal” in Clause 3(6). The amendment is to reflect that the Scotland Act 2012 amended the appeals regime so that certain devolution appeals in Scotland that deal with compatibility with EU or human rights law are dealt with under Section 288AA of the Criminal Procedure (Scotland) Act 1995, rather than the provisions currently listed in the Bill. Making express reference to this section provides certainty that such appeals would be covered.
Clause 22 is a technical clause which defines the interpretation to be given to key words and phrases in the Bill. Amendment 74 would alter Clause 22 to remove any possible ambiguity about the definition of the word “quashed” in relation to overturning a conviction on appeal by replacing it with a phrase making clear,
“that there is no longer a conviction”,
in relation to the first and third conditions for recall. This would cover the scenario where a sentence is replaced with an absolute or conditional discharge, meaning that it is no longer legally to be considered a conviction, as well as the case where the conviction is directly overturned.
I turn to the amendments tabled by the noble Lord, Lord Foulkes. He rightly said that they were paving amendments, and they are of considerable interest. I was intrigued particularly by Amendment 3, which would mean that if an MP were to be convicted outside the United Kingdom, the MP would also be subject to a recall petition process. As the noble Lord mentioned, the Law Society of Scotland raised that issue. The noble Baroness, Lady Hayter, referred to a number of the difficulties with such a proposal. Outside the United Kingdom, Parliament has no control over what acts amount to criminal conduct or when custodial sentences are imposed. Therefore, we cannot predict that a recall petition would be appropriate in all circumstances where an MP is given a custodial sentence outside the United Kingdom.
7.15 pm
Lord Foulkes of Cumnock: How is that dealt with under the Representation of the People Act?
Lord Gardiner of Kimble: If the noble Lord will display a shade of patience, I shall of course deal with that, but I would like to explore the general position as well.
There is also the practical difficulty of how such a conviction would affect the working of the recall petition process. Under the Bill, the relevant court would notify the Speaker of the conviction and of when the relevant period for appeals had expired. I hope that your Lordships would understand that it would not be possible to put such a duty on a court outside the United Kingdom.
The noble Lord’s wording, “or elsewhere” is intriguing. My understanding is that under the Representation of the People Act 1981, a Member of Parliament sentenced to more than one year in prison is automatically disqualified, whether the MP was found guilty in the United Kingdom or elsewhere. My notes say—underlined—“as long as the Member of Parliament is detained in the United Kingdom or Ireland”. An MP sentenced to more than 12 months but detained anywhere else in the world would not be disqualified but could be suspended from the service of the House, were the House so to decide. I am intrigued by the point that the noble Lord has made. Without promising anything, I will make sure that his point is fully covered.
Lord Forsyth of Drumlean: Given that the Bill is meant to be about enabling the electorate to hold to account Members who have been sentenced for less than a year to restore confidence, surely, as my noble friend has pointed out, we could get a situation where someone had committed a serious assault in, say, France, and had been imprisoned for less than a year, but would remain as a Member of Parliament, whereas someone who had done the same thing in the United Kingdom would not. Would that not open the whole process to ridicule?
Lord Gardiner of Kimble: Certainly, the process is not intended for ridicule. This is about very serious matters of wrongdoing. That is why I said to the noble Lord that I just want to check absolutely on the points that I have explained about the reasons for the Representation of the People Act 1981 provision. I hope that my noble friend caught my words. I said that if a Member of Parliament were sentenced to more than 12 months but detained anywhere else in the world, they would not be disqualified, but of course the House could suspend them were it so to decide. Without pre-empting anything, my view would probably be that, if a Member of the House of Commons was to commit an extremely serious offence, which involved a considerable custodial sentence, in any country that my noble friend has mentioned, there would obviously be very considerable concern and remedies would need to be sought.
Lord Forsyth of Drumlean: I apologise to my noble friend for pressing him on this. There would indeed be considerable dismay, but the Bill does not provide for that. The argument is that the House may suspend someone who is subject to a custodial sentence of more than a year in another country covers the existing position which says that a Member who has been
sentenced to more than a year is automatically disqualified from the House of Commons. This Bill is supposed to deal with serious offences where the sentence may be less than a year, as we have been hearing from my noble friend Lord Finkelstein, who listed a number of very serious offences. The hole in this Bill, which has been pointed out by the Law Society of Scotland and by the noble Lord, is that if it is done overseas it is not covered. That surely makes the whole exercise a little flawed, to say the least.
Lord Gardiner of Kimble: My Lords, I repeat to my noble friend that that is precisely why I said I would be considering and reflecting on what the noble Lord said. I have said it twice now and I hope my noble friend will understand that I said I would make sure that it was absolutely watertight, because we want clarity on the matter. My understanding is that, if a Member of Parliament were to be convicted of an offence in another country, it would, of course, be open to the Standards Committee of the House of Commons to recommend suspension from the service of the House. It would then be for the other place to decide whether and how to act on such a report. In such a situation, the MP could therefore become subject to recall through the second condition. However, I repeat to my noble friend and to your Lordships that I will look at the point he raised to make sure that there are sufficient safeguards in the matter.
Amendment 4 amends the first trigger to capture only sentences of more than one year. My noble friend Lord Forsyth has already made a point on this, but the amendment would have the effect of altering the first recall condition to make an MP subject to the opening of the recall petition process only if the Member of Parliament had been convicted or sentenced to be detained for more than one year. However, as the noble Lord knows, and as has already been discussed, there would be an automatic disqualification under the Representation of the People Act 1981. Under the noble Lord’s proposal, a Member of Parliament sentenced to more than one year’s imprisonment would be both subject to a recall petition process and automatically disqualified. I think that the noble Lord would agree that that would not be what we want from this process.
Amendment 13 removes the provision for historical sentences by removing Clause 2(1). Subsection (1) states that the first recall condition includes an offence committed before the MP became an MP, but does not include an offence committed before the day on which Section 1 comes into force. However, as your Lordships have heard, the Government have tabled Amendment 15 to give effect to the will of the other place, which would mean that offences committed before the Bill comes into force would be caught, as long as the conviction took place after the Bill comes into force and after the MP becomes an MP. Deletion of this subsection would leave it unclear whether an offence committed before the MP became an MP was captured, and offences committed before the Bill comes into force would not be captured. This would have the effect of restricting the number of occasions on which recall could be used and leaves a lack of clarity. The amendment that the noble Lord has put forward clearly goes against the wishes of the other place, to whose Members recall would apply.
Amendment 16 excludes historical offences that were known before the MP became an MP and would enable Clause 2(1)(a) to ensure that offences that had been “disclosed” before the MP became an MP would not be caught by the recall trigger. Again, this amendment has been raised by the Law Society of Scotland, but we are not clear what the word “disclosed” means in this context. If it is to be taken to mean “convicted”, the policy intention of the Government is clear. An MP who was convicted and sentenced before they were elected should not face recall as their constituents will have been able to take account of the conviction in electing them.
There is, of course, the possibility of a person’s criminal record not being publicly known. However, in either case, the Government’s intention is that, where an individual has been convicted and subsequently elected as an MP, the MP will not be subject to recall. Under the Bill, recall will be triggered only where a sitting Member of Parliament is convicted and receives a custodial sentence of 12 months or less. This could be for an offence committed while the person is an MP or beforehand—and, if the government amendments implementing the will of the House of Commons on capturing historic offences are accepted, whether the offence takes place before the Bill comes into force or after.
On the issue of suspended sentences, I refer the noble Lord to Clause 2(2)(a). I am relieved to say that the word “suspended” is in the Bill. I hope that the noble Lord will feel that his paving amendments have been given a hearing on the Front Bench. I will look at the “or elsewhere” but, in the mean time, I hope the noble Lord will withdraw his amendment.
Lord Cormack: Will my noble friend be kind enough to comment on the brief exchange I had with my noble friend Lord Finkelstein? Do the Government regard Members of Parliament as employees? That really is a very important issue.
Lord Gardiner of Kimble: My Lords, I do not think that I am going to get into an exchange with two noble friends except to say that in my view, we are all servants of the public.
Lord Forsyth of Drumlean: The existing provisions automatically disqualify a Member of Parliament if they have a sentence of more than one year. Does that include suspended sentences?
Lord Gardiner of Kimble: I may need to look into the provisions of the 1981 Act, because I do not have it in front of me. I will make sure that my noble friend knows.
Lord Forsyth of Drumlean: A thought has just occurred to me that there might be another loophole if someone was sentenced to more than a year, suspended. If that did not create an automatic disqualification, it would also not provide for recall.
Lord Foulkes of Cumnock: My Lords, I am grateful to the Minister for a very detailed and helpful reply. The whole debate, which has lasted nearly an hour, has shown the value of Committee stage in the House of Lords. We have identified a number of loopholes and the Minister has responded helpfully to them. I will deal with them very quickly, in reverse.
The Minister answered my question about suspension precisely and I accept that completely. I had understood that Amendment 16 meant not just that the convictions were disclosed but that the person had been sentenced. I will go back to the Law Society of Scotland and get that clarified. I will also draw its attention to the Minister’s very helpful comments.
The Minister and my noble friend on our Front Bench made very convincing arguments in relation to Amendment 4. However, some work still needs to be done, and I am grateful to the Minister for agreeing to look at this. First of all, he said he was intrigued by what had arisen, and the conflict between the provisions in the Bill and the provisions in the Representation of the People Act. The exchanges, which included the noble Lord, Lord Forsyth, indicated that there seems to be a number of contradictions that need to be resolved. The Minister went on to say that he will consider and reflect on them and come back to the House after his consideration.
7.30 pm
Lord Gardiner of Kimble: I want to make sure there is clarity. I will certainly reflect on what is in Hansard. I do not want to suggest that I am in a position to come back at a further stage because I do not know the answer to this—but I want to consider all that has been said, given the point that the noble Lord made.
Lord Foulkes of Cumnock: I realise that the Minister is constrained not only by messages from the Box but by Ministers in the other place, Ministers higher up and so on—but he has been helpful, and I hope that he will use his helpfulness, eloquence and strength of view in his discussions with his colleagues and say that these anomalies have been raised and that they should be considered. I will ask Michael Clancy of the Law Society of Scotland to look at the comments as well and see if we can reword the amendments for Report to make them fit with what the Minister said and make them more comprehensible. I thank Michael Clancy and the Law Society of Scotland for the great help they have given.
I shall not table further amendments if I know that the Minister is going to come up with some suggestions, so I would be grateful if he would keep in touch with me and other Members of the House in relation to that. In the light of his helpful response, I beg leave to withdraw the amendment.
House resumed. Committee to begin again not before 8.33 pm.
Media Plurality: Communications Committee Report
Question for Short Debate
7.33 pm
To ask Her Majesty’s Government what is their response to the Report of the Communications Committee on media plurality (1st Report, Session 2013–14, HL Paper 120).
Lord Inglewood (Con):My Lords, as many of your Lordships know, this debate was first scheduled just before Christmas but was withdrawn by consensus after discussion because the debate on the Modern Slavery Bill had become unconscionably drawn out and the rigidity of the rules of procedure meant that nothing could be done to stop it being further propelled into the depths of the night. Because of that, I am very grateful to the usual channels and the House authorities for expediting this later debate—but it is by definition shorter than the one we would have had then. A large number of Members have wanted to speak. Some have withdrawn and others will have little time. I have therefore said that if those who want to speak on another occasion on this important topic would let me know, I shall see if we can find a way of doing that.
I shall aim to be concise in my opening remarks. Those who want to follow up the detail of the report can always read it for themselves. Equally, there is a custom in this House to congratulate those who produced the report. Perhaps on this occasion we might take it that silence equals universal congratulation, and that anybody who wishes to dissent can always express themselves in detail.
On 4 February last year, nearly 12 months ago, the Communications Committee, of which I was then chairman, published its report on media plurality. This was the conclusion of work by the committee over the previous seven or eight months. I am very grateful to the noble Lord, Lord Best, the current chairman of the committee, for allowing me to lead this debate. I will also thank Tim Suter, our specialist adviser, and the staff of the committee—in particular Alan Morrison, the policy analyst, who has moved on to other things.
Media plurality is about ensuring that the public have available to them a range of different opinions, views and information from a variety of sources. A good media plurality policy ensures that there is a varied mix of viewpoints and information available within the media from a variety of different voices. At the heart of our inquiry and report lies this firmly held idea that if there is sufficient plurality within the media, our fellow citizens have access to a diversity of viewpoints and individual media owners will not have excessive and disproportionate influence over the political process. We think that this is very important.
In the recent past—that is to say, in the past five years or so—issues surrounding media plurality have come under the political and media spotlight. This has been prompted by concerns raised about the proposed,
and then dropped, acquisition of BSkyB by News Corporation, Ofcom’s report on measuring media plurality, the Leveson report, the report by the European Commission’s high-level group on media freedom and pluralism, and the Government’s consultation on media ownership and plurality.
The Communications Committee therefore decided that it would carry out an inquiry to examine ways in which the policy and regulatory framework surrounding plurality could be updated. Many ideas had been proposed, but somehow nothing firm had emerged. Hence we embarked on our inquiry to produce a set of recommendations that would command support and instigate action for reform.
We heard oral evidence from about 40 individuals and organisations and received written evidence from about 20 more. Many proposals were put to us. We evaluated them, considering carefully their merits and demerits. From this, we produced our own proposal for reform which I will briefly explain this evening.
We propose a system built around two key elements. The first, which is new, is the undertaking of a plurality review on a predictable periodic basis in addition to the present transactional system. We believe that the Government should introduce a statutory periodic review of the plurality of media markets to be undertaken by Ofcom on a four to five-year basis. Whatever is done has got to be manageable and realistic, so Ofcom’s assessment should be based on a limited number of measures that address availability, consumption and impact.
We think that Parliament should have a role in setting guidance for this new framework, but, crucially, that the metrics should not be set down in statute. In the fast-moving media world of today, it is essential that there is flexibility for Ofcom to interpret the statutory guidance, design the assessment framework and select metrics that are appropriate at the time of the review. After all, what is suitable at one point in time may not be suitable at another. This report needs to send very clear signals and guidance to all concerned about the prospects of consolidation in future transactions in order to limit the need for any subsequent transaction or plurality reassessments.
In this way, the periodic plurality review will set the context for the second element of our proposal, which I have already touched on: a modification of the existing arrangements for a review of specific transactions that occur between one periodic review and the next. We believe that there is a flaw with the current system of transactional reviews, which is that they muddle the distinction between competition policy and plurality policy. Plurality assessments and competition assessments must be carried out as two distinct procedures by regulators, each with the appropriate set of priorities, expertise, methods and ethos. It is absolutely right that competition authorities should retain the responsibility for the assessment of a transaction’s impact on competition, but it is equally appropriate that Ofcom should be given a new statutory responsibility for the assessment of a transaction’s impact on plurality.
There will, of course, be occasions when the two authorities reach different decisions about whether a media transaction should go ahead. We concluded
that in cases of such conflict, the citizen’s interest should trump the consumer interest. This means that responsibility for resolving such conflicts between the competition authorities and Ofcom in their reports on any particular transaction would be given to Ofcom. The Ofcom board should make the final public interest decision, not the competition authorities as at present. The Ofcom board, mindful, of course, of its own twin statutory duties to further the citizen’s and consumer’s interests, should weigh up the merits of each case and determine whether overall on balance it is in the public interest for the transaction to proceed.
That, in brief, is the Communications Committee’s proposal for a plurality policy. It is flexible enough to take account of changes in the media world and would not, we believe, require substantial revision every few years.
The Government have responded to the committee’s report. The response was published in a single document with the Government’s response to their July 2013 consultation on media ownership and plurality and was received in the first few days of the Summer Recess. The part containing the response to our report sets out the 46 paragraphs of recommendations contained in the committee’s 258-paragraph report, but contains just 20 paragraphs of responses. Somewhat to our surprise, the Government do not engage with the substance of much of what the committee said, saying that their,
“work on plurality does not attempt at this stage to propose what measures might be taken to address any potential plurality concerns. Rather we”—
“think that without the initial evidence base upon which to base policy decisions, the best course of action is impossible to identify”.
The Government’s proposed course of action is to,
“look to commission Ofcom to develop a suitable set of indicators to inform the measurement framework for media plurality”.
I have three points I would like to make about this statement. First I would be grateful if the Minister could confirm, despite the imprecise language used, that the Government are actually going to commission Ofcom to do this work—and, in particular, when it will be done. Secondly, it misses the point of our recommendation for a series of periodic plurality reviews. The media sector, as your Lordships will know, is one of fast-paced change. Regular reviews would allow the sector a degree of certainty, but for such a review to have any practical relevance at all, Ofcom needs to be able to select metrics that are appropriate to the circumstances at the time. Such a baseline, which is clearly defined and rigid, to assess media of the kind envisaged by the Government is a one-off affair and is simply not flexible enough for measuring something going through such radical changes as media markets.
This takes me to the third point in response to the Government, which is that the response does not really get us anywhere. In 2010, issues surrounding media plurality were firmly in the spotlight because of the proposed takeover of BSkyB by News Corp. There was near unanimity that “something must be done” to update our media plurality policy. We are now four years on from then and media plurality issues have, for
now, moved from centre stage of current media and political debate—but, in reality, we are no further forward than we were four years ago. Now is the time to get a sensible and flexible policy. If we wait until the next crisis comes before we do anything, media plurality policy will still be as unfit for purpose as it was four years ago—indeed, probably more so.
We are nearing the end of a Parliament. The committee is clear that the next Government must move forward swiftly in formulating a media plurality policy that is “fit for purpose”. This must ensure that there is sufficient media plurality to ensure that citizens are able to be informed through access to a diversity of viewpoints, and that medias do not have too much influence over the political process. Will the Government confirm they think that this matters, and will they please tell the House what they are proposing to do to ensure that it is actually the case?
Baroness Jolly (LD): I remind noble Lords that timing this evening is really tight and that two minutes really is just two minutes.
7.43 pm
Baroness Healy of Primrose Hill (Lab): My Lords, I too am a member of the Select Committee which undertook this inquiry into media plurality, and I commend the findings as a very useful contribution to the debate surrounding this controversial subject. It is controversial in that there are many views as to how to ensure we enjoy access to an environment which provides media plurality and protects the public against an undue concentration of power.
Policy approaches to media plurality are not straightforward. If there is sufficient media plurality, then citizens will have the opportunity to be informed through access to a diversity of viewpoints, and the media owners cannot have too much influence over the political process. Our findings recognise that the media market is in a fast changing climate and organic growth should not be suppressed unless it has caused immediate and pressing concerns. We also believe that:
“The scope of any plurality policy should encompass both local and regional media as well as national media in the devolved nations and UK-wide media enterprises. In dealing with local or regional media, those tasked with making decisions should in reaching their conclusions pay particular attention to the question of financial sustainability”.
I would just like to mention why the committee did not find in favour of using caps on media ownership to make an assessment of media plurality. Even a hybrid system that might trigger action which incorporates structural and behavioural remedies was not, in the end, preferred. More flexibility is required to consider the diversity and range of independent news voices, overall reach and consumption and propensity of consumers actively to multi-source. It was felt that the unpredictable and arbitrary nature of the trigger would have inevitable consequences for innovation and investment.
Media plurality, not a goal in itself but more a means to an end—achieving a well informed public empowered to make decisions at the ballot box—is vital for a healthy democracy.
7.45 pm
Baroness Bonham-Carter of Yarnbury (LD): My Lords, the events of last week in France have laid bare that at the heart of our liberal democratic society lies freedom of speech and a free press. Plurality is central to this. Diversity of ownership is an indelible liberal principle. A corporate media monopoly threatens a free press almost as much as a state monopoly. Central to the existence of a diverse and independent media is that no individual organisation has too much control of the national conversation and that there is an array of competing voices, so that the public can draw from a range of views. This requires strong rules around media ownership to protect plurality in the marketplace. I am sure my noble friend the Minister will agree that it also highlights the importance of protecting public service broadcasters such as the BBC in order that alternative sources of impartial information are available.
But plurality is not just about ownership. We also need diversity within the media and among practitioners—the journalists, producers, editors, writers and cartoonists. At the moment it is too white and too able-bodied. Last March Lenny Henry made a speech calling, in no uncertain terms, for change and I am glad to say we are getting it. Ed Vaizey, DCMS Minister of State, established a cross-party, cross-industry round table. I sit on it and we meet regularly. There has been a gratifying response. The BFI has added diversity to existing requirements for accessing its film fund. ITV has announced a social partnership which requires commissioning editors to better reflect the diversity of modern Britain. The BBC has established an independent advisory group and announced new targets, as has Sky, which has also set up a BAME scholarship for its academy, and yesterday Channel 4 launched its 360-degrees diversity charter. Congratulations—now let us hope the rest of the media follows suit. In these times we need to reflect and understand diversity more than ever.
7.48 pm
Baroness Kidron (CB): I refer noble Lords to my interests in the register. I wish to raise two points relating to children and young people, and why the metrics of the framework that Ofcom is commissioned to design should explicitly consider young people.
First, the young, by virtue of their age, have a more limited life experience from which to critically appraise information. This leaves them more vulnerable than their adult counterparts to the possible harms of a restricted or lop-sided diet of news and current affairs. In December 2010, Her Majesty’s Government undertook to look at all new Bills and policies in the light of the UNCRC, and I argue that media plurality policy falls well within the rights described in the charter.
Additionally, the framework should also take into account how young people consume news and current affairs. Ofcom’s 2014 figures show a rapid increase in the amount of information the young access online. As many noble Lords will be aware, the commercial internet is constructed primarily on an advertising model that sets algorithms largely based on what a user previously viewed and on what their social networks previously “liked”.
This personalisation has benefits of filtering searches and newsfeeds so if you prefer jazz to rock, or fast foods to wholefoods, you will be offered choices that fit closer to your desires. However it has an insidious effect on news. This mechanism—known variously as the filter bubble, echo chamber or personalisation—is a structural obstacle to media plurality.
One of the great wonders of the web is the extraordinary range of information and opinion it delivers; how it does so, however, is not neutral. Can the Minister therefore confirm that Her Majesty’s Government, in light of previous undertakings, will ask Ofcom to explicitly take into account the availability, consumption and impact of news and current affairs on children and young people when designing the measurement framework and, in doing so, that the personalisation of their media online and the proportion of their news and current affairs consumed online will be taken into account?
7.50 pm
Lord Patten (Con): My Lords, I agree with the committee in its recommendation that Ofcom is at present the best vehicle to conduct any plurality reviews, and it is as plain as a pikestaff to me at least that great issues such as media foreign ownership or the overwhelming dominance of the BBC must not be allowed to dominate plurality reviews. Not just regional but local plurality is very important, as paragraphs 169 to 172 of this report suggest. Local plurality is rather a different animal from the big Westminster village issues that doubtless my noble friend Lord Black of Brentwood and other noble Lords will address in a moment.
While local areas may have just as many aspiring citizen journalists powering the new media as there are on the national stage, in the older print media, locally it is a fight against extinction for what is often now one survivor. In my part of the West Country, in Dorset and Somerset, dairy farmers and the print media alike are going fast out of business. In that particular area just one local paper—as it happens a very good, prize-winning one—is left in the paid-for field, so it has come simply by inheritance to hold a monopoly position. Monopolies are generally bad, but in this case no local paper would be there at all if it went out of business. In fact, if it did there would be just one free-sheet magazine, supported by advertising in the local area.
Therefore in any local assessments, this survivorship monopoly is not a bad but a public good. The picture is so different from the national. In local media assessments the first principle must be to preserve localism where possible and to see that to that end supportive cross-media ownership locally is not just a good—it may well be vital.
7.52 pm
Lord Parekh (Lab): My Lords, I agree with a good deal of the report, but there are four areas where I have small disagreements.
First, plurality is not enough. You might have several points of view, but if those points of view do not communicate with each other or do not understand what each is about, the plurality can be a recipe for
social fragmentation. Therefore plurality should be accompanied by mutual understanding and dialogue. That dialogue and debate is the lifeblood of democracy, not just plurality per se.
The second important thing is that that we might have plurality in the sense of several points of view, but it is perfectly possible for one to be extremely dominant and drown out the others. How do we ensure that simple multiplicity of points of view is not enough? There has to be some equality between different points of view.
The third important point to bear in mind, which was made earlier, has to do with the pluralisation of the media itself. You can have a situation where you have a wide number of newspapers and media outlets, but let us say on the questions of race or gender they may be manned only by people from one particular community or gender. In that case you have plurality of ownership, plurality of media, but uniformity of views, which obviously does not bear thinking about. When we talk about plurality we are talking about plurality of points of view, not just in one area but in all.
The last point is on something that slightly puzzled me. The report attacks the market, rightly, but talks in the language of the market. It says, for example, that plurality is important in order that a citizen “can access and consume” points of view. I should think that a point of view is not a commodity and that it is not something to be consumed. It is something one identifies with. Therefore, diversity of points of view and media plurality are important, not so that the individual consumer can make a choice between them but in order that democracy can be vibrant, different points of view can debate with each other, and we can arrive at a broadly acceptable point of view.
7.54 pm
Lord Razzall (LD): My Lords, this debate should obviously be looked at in the context of the development of the law recently. Until the Communications Act 2003, the only restriction on media mergers or the abuse of a dominant position was through competition law. The 2003 Act introduced for the first time a public interest test for media mergers, which imposed on the Government an obligation to assess whether the media merger would have adverse effects on media plurality. The Act had two major weaknesses. First, there was no definition of plurality, although we all understood that it probably referred to what Mr Murdoch was up to; and secondly, there was a basic weakness that a plurality review occurs only in the circumstances of a merger.
The recommendations this report makes are quite significant. It recommends that Ofcom should continue its transactional review capability, and the centrepiece is of course the tripartite approach the committee recommends. First, in the event of any media merger the competition authorities first look at the impact of the transaction on competition or on the abuse of monopoly position, where there is no transaction; secondly, Ofcom looks at whether a transaction has an adverse effect on media plurality; and thirdly, and very significantly, as the noble Lord, Lord Inglewood, indicated,
there should be a statutory periodic review of plurality of media markets by Ofcom on a four to five-year basis. Like members of the committee, we believe that if whoever the next Government are could legislate to that effect, the potential abuses by media moguls will be avoided.
7.56 pm
Viscount Colville of Culross (CB): I will pick up where the noble Lord, Lord Patten, left off, on local media. I ask your Lordships to concentrate not just on the collapse of regional newspapers and the failure of new local television channels to cover local news sufficiently.
This time of transition offers a very exciting opportunity to set up hyper-local sites which concentrate on local matters. The coverage at the moment is very different in different parts of the country. Cities like Birmingham have local papers and a plethora of local blogs, websites and social media, whereas others, like south Wales, are much more poorly served.
We need to act now to encourage a wide variety of sites which will allow local information to evolve in these poorly served areas. Time is of the essence. The big players, such as Google, are moving in to scoop up the local business advertising spend. When that happens the revenue raised will not be recirculated into the local economy; instead, it will be repatriated to California. Right now we need to encourage the setting up of different kinds of local sites which will keep that advertising spend in the local economy and inform local communities at the same time.
The Media Standards Trust has brought out an interesting report, which suggests that some kind of prize money could be offered to support the launch of new ideas from the ground upwards so that they are tailored specifically to the needs of their area. There are a variety of ways of funding that, but one of the most attractive is to use the levy already charged to internet intermediaries and other sites by the Office of the Information Commissioner for the resale of personal material about our browsing history. At the moment that is divided into a single annual levy for large companies and a smaller one for small companies. A graduated fee structure across those companies could bring in more money to pay for this prize.
This is a great opportunity to increase plurality across our nation at a local level, to ensure that people are given crucial information about their areas so they can take part in our democracy as fully informed citizens. Will the Minister consider such an idea to encourage plurality in the local media across the country?
7.58 pm
Lord Black of Brentwood (Con): My Lords, I draw attention to my media interests in the register and in particular to my presidency of the European Newspaper Publishers Association.
In its admirable report the committee was absolutely right to draw attention to the European aspects of this debate. At the moment the European Commission has a limited and strictly defined role in UK media plurality policy through the EC merger regulation, and it is
right that it should. However, in recent years there have been attempts by some to expand the scope of that competence; the report cites the efforts of the European Initiative for Media Pluralism in particular. That grew out of the highly controversial EC High Level Group on Media Freedom and Pluralism, which recommended in 2013:
“The EU should be considered competent to … protect media freedom and pluralism at State level”.
It was not just the high level group which sought to expand the EU’s role in this area. The Commission itself has in the past few years spent hundreds of thousands of pounds funding a so-called Media Pluralism Monitor, which has sought to quantify, interpret and then rank media plurality across Europe despite the EU’s lack of competence in this area.
Such a development would not be acceptable. Media plurality—reflecting the way media markets operate very differently in each country—must be a matter for national Governments. That is why I welcome the finding of the committee at paragraph 34:
“There appears to be a strong consensus that UK media markets should be the focus of media plurality policy; we agree”.
In its response to the committee, the Government rightly concurred and said that responsibility for media plurality, ownership and media freedom should rest with the member states. That clear policy is of particular importance in view of the upcoming review of the audio-visual media services directive during the term of this Commission and other discussions that are under way. I would therefore be very grateful if my noble friend the Minister would restate that important commitment this evening.
8 pm
Lord Gordon of Strathblane (Lab): My Lords, reference has already been made to the fact that many Peers withdrew from this debate because of the shortage of time. I was tempted to do so as well. I reckoned, however, that the 10 seconds extra that everyone would get if my two minutes were redistributed were hardly worth the candle. There is another important point. It is very important to demonstrate to everyone concerned that the matter of this debate is not simply of concern to the Communications Committee. Creating a healthy democracy requires—almost as a prerequisite—a vibrant media. This is a vital issue which I trust the House will address again with greater time at its disposal.
I want to make three very brief points—possibly two, depending on time. First, it is important to define the universe properly. This is responsible, I think, for the conflicts between Ofcom and the Competition Commission. I take the area of local newspapers, radio and television. Local newspapers, as the noble Lord, Lord Patten, pointed out, were a monopoly. Local radio was originally set up as a monopoly of local commercial radio, and local television at the moment is a monopoly. These are beneficial monopolies in that they at least have the resources to generate news. Once too much fragmentation is created by defining the universe too narrowly, the result is no news at all.
The second point, which I will make briefly, is to watch the technology, as the noble Baroness, Lady Kidron, pointed out. We are at the point now where
technology is not passive. It could well dictate to us. People are concentrating on media owners in the traditional sense. The people who own the search engines and who manufacture television sets may well be a much greater threat to plurality in the future.
8.02 pm
Lord St John of Bletso (CB): My Lords, I am grateful to the noble Lord, Lord Inglewood, for his able stewardship of this topical inquiry. Clearly, we have seen a huge transformation in the media and communications landscape as a result of digital technologies, online journalism and social media, with an influx of new entrants to the news market. Increasingly, the younger generation get their news from Twitter, Vox and BuzzFeed. As a result, the levels of choice and media plurality have never been greater. We are also fortunate to have a public service broadcasting system that guarantees the provision of well resourced, independent and impartial news from the BBC and other commercial PSBs.
As several noble Lords have mentioned, plurality policy needs to encompass both local and regional media. I support the recommendation that policymakers should adopt a balanced approach, taking care not to penalise success nor harm innovation while acting to address plurality concerns. I also support the call by ITV that the UK needs a new and more equitable regime governing the basis on which PSB content providers commercialise their content on pay-TV platforms. Finally, I also support the recommendation that Ofcom undertakes a statutory periodic review of plurality every four to five years. There needs to be a clear demarcation line between plurality and competition policy. Measuring media plurality cannot be confined to any single measure, but should reflect a collection of measures. I shall end with the words that we used at the start of this report:
“Media plurality is not a goal in itself but a means to an end”.
8.04 pm
Lord Sherbourne of Didsbury (Con): My Lords, there are good reasons why there has been no agreement yet on how to approach media plurality. First, everyone has their own definition. Ofcom has come up with three criteria, one of which is impact. How do we measure the impact on someone who gets their news from reading, listening, watching and downloading the news? Secondly, there is how far policy on plurality would overlap or conflict with competition policy. Are we to have different criteria for measuring competition and plurality? Thirdly, there is the obligation of impartiality and balance imposed on the broadcasters. How will that be evaluated? It is no wonder that Ofcom has said that assessing media plurality involves judgment as well as measurement.
Let me make one observation to illustrate how the world is changing, a matter which noble Lords have referred to. Facebook uses algorithms to decide which new stories rise to the top of the page. It is therefore possible that the 26 year-old product manager for the Facebook news feed is one of the world’s most powerful news executives. On top of everything else, how on earth is this to be factored into measuring media plurality?
8.05 pm
Lord Macdonald of Tradeston (Lab): My Lords, I declare a past interest. I was chairman of Scottish Television when we bought the Herald and the Glasgow Evening Times newspapers in 1996 and created the Scottish Media Group. To complement our ITV franchise for central Scotland, we then merged with Grampian Television, covering the north of Scotland. Our combined ownership of newspapers and broadcasters caused understandable public concern. Both transactions were cleared by the competition authorities, but I was left in no doubt about the sensitivities of the media market in Scotland, which is quite distinctive.
Watching the independence referendum from south of the border—as, indeed, I did—your Lordships may have been perplexed to see banner-waving crowds outside BBC Scotland alleging pro-union bias. Inevitably, the channel 3 broadcaster, STV, was also accused of bias by yes and no campaigners. Both broadcasters will, I trust, keep their nerve and their impartiality. That balance may be difficult to maintain longer term.
Unlike public service broadcasters, newspapers are, of course, more partisan. Despite almost half of their readers voting yes, most Scottish editions of the UK papers opposed independence, as did the locally owned newspapers the Scotsman, theDundee Courier and the Aberdeen Press and Journal, which resulted in a pro-union press consensus denounced as undemocratic by nationalists. Given such tensions in the relatively small Scottish media market, I welcome the committee’s recommendations that plurality policy for the UK should also encompass the devolved nations. The Government are tasking Ofcom to develop indicators and frameworks to guide market assessments of future media transactions and concentrations of ownerships. Ofcom’s assessment of the Scottish media market will be awaited with keen interest.
8.07 pm
Lord Cashman (Lab): My Lords, I am pleased to follow the noble Lord, Lord Macdonald, on some of his points, because I want to take a slightly different perspective. We have dealt with plurality, yes, but I remain deeply concerned about the power of the national press, especially during elections. I quote the Leveson report on the issue of media ownership:
“The media ownership regime takes as its starting point the position that a variety of owners will represent a variety of different viewpoints. This cannot be taken as axiomatic as owners could have a very similar set of views and values”.
That is, for me, precisely the issue. The current market dominance and the partisan nature of our press inhibit the democratic process.
Let me deal with the European aspect. It is worth noting—and I say this as a previous chief election observer in Rwanda—that the internationally agreed principles for free and fair elections involve a balanced and non-partisan media in the run-up to and during the election. This process involves measuring the amount of coverage dedicated to each party, as well as the reportage. The EU handbook is clear. It highlights that the European Union approach is based on international human rights standards, in particular the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights. It also underlines that election observation missions must adhere to the Declaration of Principles for International Election Observation, a landmark document, commemorated at the United Nations in 2005. It states:
“The concept of due impartiality does not mean that broadcasters cannot provide critical coverage of the candidates and parties”.
“The media therefore have a great deal of responsibility placed on them during election periods, and it is essential that the mass media of radio, television and newspapers provide a sufficient level of coverage of the elections that is fair, balanced and impartial, so that the public are informed”.
On that basis—of a highly partisan national press—it is clear on this point alone that the UK would not pass such an election observation mission.
8.10 pm
Lord Stevenson of Balmacara (Lab): My Lords, this is a really good report, which deserved a much better response than it received. I hope that the Minister, when he comes to respond, can help fill in the gaps.
There are some things we can agree on: we have a workable definition of media plurality and a definition of the desired outcomes of a plural market. We also agree on the need to centre plurality policy on current affairs and news, and on the need to centre it around the UK, not neglecting local and regional issues, national media and the devolved Administrations. We also agree on the need to take up a platform-neutral approach. But why did the Government not go further with the other recommendations? Why are they not willing to engage with the recommendations of the BBC? Why do they not accept the centrepiece of the committee’s work—the establishment of a statutory periodic review? Why do they not pick up the ground-breaking new relationship proposed for government, Ofcom and the Secretary of State in relation to transactional issues?
The Government simply note the committee’s ground-breaking recommendations on a dual competition and plurality review system. That seems to me to introduce a very unwelcome uncertainty and instability into the market. It is surely not acceptable for a Government to indicate that they are minded to legislate on an issue and then to dither about what they intend to do.
8.11 pm
Lord Bourne of Aberystwyth (Con): First, I thank noble Lords for the quick yomp through these issues. I appreciate the discipline that was shown, as does my noble friend who has been whipping on this issue—the iron lady of the Whips. We are very grateful to noble Lords for that.
I welcome the opportunity for your Lordships to debate this important issue of media plurality and the Communications Committee’s detailed consideration of this matter. I agree with the concept of media plurality and diversity of views. I think that point was raised by the noble Lord, Lord Parekh. I thank my noble friend Lord Inglewood and the committee members, some of whom spoke in the debate, such as the noble Baroness, Lady Healy, the noble Lord, Lord St John of Bletso, and my noble friend Lord Razzall, for their
hard work. My noble friend Lord Inglewood has considerable expertise in this area and has chaired the Communications Committee with great distinction.
The public’s ability to access a wide range of news, views and information about the world in which we live is central to the health of our democracy and our society. Neither the Government nor any other body can, or indeed should, compel people to consume a range of media voices, or control the impact that these voices have on public opinion, but it remains the case that the Government should seek to promote the availability and consumption of a range of media voices. To that extent, I agree with the noble Lord, Lord Stevenson, on the importance of these issues. It is important that there should be access to a range of media voices. I confirm to my noble friend Lord Black that the Government certainly do regard this matter as a national government issue. There is no doubt about that.
It is, of course, vital that the Government seek to achieve this in an appropriate way. The media landscape is changing at a pace that some of us could not have envisaged when the regulatory framework for plurality was originally devised—a point made by my noble friend Lord Inglewood and others—and the environment will undoubtedly continue to evolve and change very quickly. While television is still the most used platform for news, 41% of adults say they now use the internet to access news stories. Of these, 18% are using Google and 17% Facebook. The social media referred to by the noble Baroness, Lady Kidron, and my noble friend Lord Sherbourne are of increasing importance. I note the points that the noble Baroness made in relation to this. Certainly, the Government speak up forcefully on these issues, and Ofcom, which is following this debate, will have heard what she has said. We shall make sure that Ofcom is aware of this debate, although I believe that it is following it closely.
The impact these changes are having on the ability of consumers to access a wide range of diverse viewpoints and information remains to be assessed. That is why in July 2013 the Government consulted to seek views on, and define the scope for, a measurement framework for media plurality. Before we decide whether to fix anything, we must first understand whether and to what extent it needs to be fixed. It is clear, however, that with the huge growth in online content, there is a case for broadening the scope of policy on plurality to consideration of the online part of the media landscape.
The Communications Committee’s recommendations on plurality followed soon after Lord Justice Leveson’s recommendations. This timing was helpful for government, as the committee’s report provided further detail to complement Lord Justice Leveson’s high-level recommendations—recommendations which were described by him as being,
“at the level of desirable outcomes and broad policy framework, rather than the technical means of achieving those outcomes”.
The committee’s findings were therefore vital to the Government’s consideration of this matter, and informed our conclusions on the consultation. Indeed, there is much on which the Government and the committee agree, not least that we can no longer overlook the increasingly important role that is played by online
content in the way the public find news and information about the world around them, and that it is news and current affairs which are of most crucial importance to media plurality and which should therefore be the focus of a measurement framework.
In our response earlier last year to the consultation and the committee’s report on plurality, we set out what should be included in a measurement framework for media plurality. Having considered the matter in detail, we concluded that online should be included and the type of content which is most relevant to media plurality is news and current affairs—that, of course, is central to democracy and elections, a matter rightly raised by the noble Lord, Lord Cashman. The scope should include all organisations that impact on the news and current affairs. This will include organisations that generate, gather and aggregate news; services that could affect discoverability and accessibility, such as online news services; and professional and non-professional commentary such as bloggers and social media. The BBC should be included. My noble friend Lady Bonham-Carter referred to the importance of its role. The framework must deliver indicators capable of illustrating the situation at United Kingdom level and in each of the four home nations. That point was rightly raised by the noble Lord, Lord Macdonald. It should examine issues at a regional and local level. The importance of local media was rightly raised by the noble Viscount, Lord Colville, my noble friend Lord Patten and the noble Lord, Lord St John of Bletso, as these are vital issues.
This very much reflects what the Communications Committee concluded on the scope of plurality policy. The Government and the committee also hold common ground in viewing Ofcom as the most appropriate body to take forward development of a measurement framework, in light of both its relevant expertise and its independence. We therefore announced in August last year that we would commission Ofcom to produce the measurement framework, taking into account our conclusions. Ofcom, as an independent body with significant understanding and expertise in media plurality, is well placed to lead on this work. It is deservedly trusted in this area, as my noble friend Lord Patten mentioned.
The measurement framework is a policy framework, underpinned by various indicators developed by Ofcom. It will enable us to measure whether the United Kingdom’s media landscape is sufficiently plural—for example, coming back to the diversity point made by the noble Lord, Lord Parekh, that the public have access to a diversity of viewpoints—consumed across and within media enterprises, and that no one media owner or voice has too much influence over public opinion or the political agenda. The Secretary of State is clear that it will be for Ofcom to decide on the metrics that inform the framework, but he also specified that at least one of the indicators should be focused on media ownership. The framework will subsequently allow for the first ever baseline market assessment of media plurality in the United Kingdom to be conducted.
Ofcom is ideally suited to undertake this work, having already developed detailed thinking in this area, including advice provided to the then Secretary
of State in 2012. I am sure that Ofcom will apply to this work the rigour and in-depth analysis that it deserves. Indeed, Ofcom has already published a call for inputs to invite early feedback from stakeholders on the indicators that a measurement framework should include. I understand that it will publish a consultation very shortly—certainly during January—with a view to reaching conclusions this summer, after consultation. Ofcom is, of course entirely independent, so the detail of the timetable is for it to consider, and it would not be appropriate for me to comment on how this work may be progressing. However, I am very much looking forward to hearing its conclusions.
The Government have been clear that we will not consider changes to the existing policy or regulatory framework for media plurality before the measurement framework and baseline assessment have been delivered. Once these are complete, with the full knowledge of any problems that we may need to solve, we will be able to establish what regulatory changes may be necessary and proportionate to address any concerns.
As my noble friend Lord Inglewood said, this is a fast-changing area. No doubt Ofcom will bear that very much in mind. I note that one of the committee’s recommendations was that the Government should introduce a statutory periodic review of the plurality of the media market, to be undertaken by Ofcom every four to five years. This is an interesting recommendation, which may merit further exploration. But as I have made clear, the Government do not think it appropriate to consider changes to the existing policy at this stage, before the measurement framework and baseline assessment have been delivered. To quote the committee’s report,
“the assessment of plurality should drive the decision about which remedy or intervention is appropriate, not the other way around”.
Despite the constraints on time, this has been an excellent debate. I welcome what my noble friend Lord Inglewood said about the possibility of further investigation and further debates on this issue. We shall continue to ensure that the committee’s recommendations are reflected on in any subsequent work by the Government. I have made a careful note of the points raised in questions that remain outstanding, and I shall, of course, write to all noble Lords who have spoken in this debate on those matters.
8.22 pm
Recall of MPs Bill
Committee (1st Day) (Continued)
8.33 pm
Lord Foulkes of Cumnock (Lab): My Lords, the amendment is grouped with Amendments 7, 8, 12 and 36. The amendment deletes the whole of subsection (4) because I wanted to delete the second recall condition. I drafted the amendment when I was feeling thoroughly scunnered—if noble Lords will excuse a Scots word—with the whole concept of the Bill, and thought that one of the ways to have a discussion about it was by proposing to remove one of the offending provisions, for reasons that were made clear during our discussions on Amendments 7 and 8. My noble friend Lord Campbell-Savours dealt with this issue so eloquently at Second Reading, in cols. 184 to 186 of the Hansard report. I want just to say how sorry I am that he is not able to be with us today; he has had a very serious operation and I am sure that the whole House will wish him a speedy and full recovery, and to be back with us.
I detected earlier that in spite of my delectable and mellifluous Scots tones, noble Lords might have heard quite enough of them, and that it might be more appropriate for me to conclude my speech now. The points that I might otherwise have raised could well be taken up by one of the other signatories to the amendments in this group—in other words, my noble friend Lady Taylor of Bolton. I beg to move.
The Deputy Speaker (Viscount Ullswater) (Con): My Lords, I must advise your Lordships that if the amendment is agreed, I will not be able to call Amendment 6 because of pre-emption.
Baroness Taylor of Bolton (Lab): My Lords, after that introduction by my noble friend, I rise to speak to Amendment 7 in particular. As my noble friend said, my noble friend Lord Campbell-Savours is very much behind my amendment and we all, as the Committee has made clear, regret very much that he cannot be here this evening. At Second Reading, his was probably the most powerful, and certainly the most impassioned, speech of the evening.
This amendment seeks to reverse an amendment that was moved by the Opposition in another place. I regret that very much, because I think that it is a big mistake. In many ways I should not really be talking; I should be saying that we should all take a few minutes to re-read the speech of my noble friend Lord Campbell-Savours. It encapsulated why the decision to move that amendment in another place was wrong. My noble friend has referred to cols. 184 and 185 of Hansard of 17 December.
The amendment in another place looked at the second group of trigger conditions—the second mechanism. Those were the days when a Member was suspended by the Standards Committee. The Government had proposed that the trigger should come into operation if a Member was suspended by the House, following a report from the Standards Committee, for 20 days.
The Opposition proposed 10 days and that amendment was carried, because of the atmosphere about which we were talking earlier, where no one in another place feels that they can stand up for reason, as they would be accused of having something to hide or wanting to let MPs get away with some form of bad behaviour. I regret that atmosphere. It is evident on all sides of the
House and has not been helpful either to the reputation of the House or people’s willingness to look at politics in a reasonable way.
When I was shadow Leader of the Commons some time ago, I was a member of what was then the Standards and Privileges Committee. At the time, it was under the chairmanship of Lord Newton of Braintree, whom we all miss in this House. He was Leader of the Commons. My noble friend Lord Campbell-Savours was on it at the same time.
It was a significant time, because we had difficult cases to deal with. There were concerns even then about the activities of just a few Members of that House. Noble Lords will remember the cash for questions incident and other things. It was also the time when the committee, under Lord Nolan, was looking at new ways forward. People working on the committee spent a lot of time trying to be constructive. I have followed its workings ever since.
When I became Leader of the House in 1997, I did not take up the chairmanship of the committee, because we felt at that time that it should be chaired by a Back-Bench Member. That was an important vote of confidence in the House. I just wish that that confidence could be maintained in that way. Members of the committee were then—and indeed are now—serious about that kind of work. The chairman and all the members take it extremely seriously.
It is a quasi-judicial committee—or at least it is at the moment—and all members are genuine in the work that they try to carry out. They look at the issues and evidence carefully. They hear and question Members very directly about the issues. But, as my noble friend Lord Campbell-Savours said at Second Reading, the amendment passed in another place will change the role and nature of that committee. If we have a 10-day period as the trigger, it is inevitable that the committee will be more prone to being party-political. The key to its success over many years has been that its inquiries have not been along party lines. It is not divided in that way. Genuine, serious, senior members have looked at an issue, if not dispassionately—people get very annoyed when anybody does something wrong—then at the facts and making a proper determination. If we change the nature of the committee it will not do anybody any good.
My noble friend Lord Campbell-Savours read out the list of those who are now members of the committee and the way in which they had voted on this amendment. It was clear that the current members are not happy with the amendment, because they realise the dangers. It is obvious. Member A has transgressed and is given a suspension of nine days, because either he or she is popular or their party has a majority on the committee. Then somebody else, Member B, comes along; because they are not popular or their party is in a minority on the committee, they get 11 days. If that happens, you are ending the career of that second person. Once people start talking about a recall position of any individual Member, those in their own party will find it very difficult to defend them or even explain the situation—so recall will not be productive in that way.
There will be a momentum that makes it inevitable. The use of social media and so on will increase the pressure all the time, which is very unwise. I have
already expressed my reservations about the Bill. If we are to have it, let us have a Bill that at least has a chance of working and not one that will destroy some of the good workings of the House of Commons: namely, the Standards Committee as is.
Lord Tyler (LD): My Lords, I have huge sympathy with these two amendments because, of course, Amendments 7 and 8 go together. That is not just for the reasons put so eloquently by the noble Baroness, Lady Taylor of Bolton. As she has said, she has experience not only on the committee but as Chief Whip and as Leader of the House. In both respects I had a minor role—one of the minor tributaries of the usual channels—in putting colleagues on to those committees. I think that we are all considerably concerned that the current arrangements have met the test of time, but that does not mean that they cannot be put under extreme pressure in the future, which would be devastating. The noble Lord, Lord Campbell-Savours, made an eloquent point in addressing the House at Second Reading when he explained that not one single member of the current Standards Committee supported this particular provision.
My only misgiving is one that I have already discussed with the noble Lord, and I am sure that he would not mind me mentioning it. Asking the members of the Standards Committee to decide between 10 days and nine days puts them in an invidious position, but in these circumstances it is just as invidious to decide between 20 days and 19 days. That is why I have attempted in earlier debates to try to find a way around this. I still think that the Government must think very carefully indeed about the invidious additional pressure that will be put on the current structure of the Standards Committee.
8.45 pm
Baroness Taylor of Bolton: I am grateful to the noble Lord for giving way. I agree with his point that it is very difficult to decide between 20 days and 21 days. I am not saying that the amendment is perfect and that 20 days is fine. As I have said, I do not want it at all. But actually the Standards Committee would only go anywhere near 20 days if there was a serious offence, so this mitigates at least a part of the problem.
Lord Tyler: I am grateful to the noble Baroness and that is why I support the amendment. However, it is important to put on the record the fact that if this Bill goes through in its current iteration, we will be imposing a new and potentially difficult situation upon the Standards Committee.
I do not know whether the noble Baroness has been involved in discussions with colleagues at the other end, but there has been a recognition that it could be in the Bill. Under the Standing Orders of the other place, it would be possible to reconsider the respective roles of the lay members of the committee as opposed to the elected members, whether the lay members could take a more active, initiative role and make recommendations to the full committee, whether there should be more lay members, and so on. All of that is outwith the Bill and unfortunately we cannot deal
with those issues, but we should at least put on the record our request for Ministers to consider and to discuss with colleagues in government and in the other place whether there should not be some review of the mechanism. I am quite clear—the noble Baroness has reinforced this from a much more experienced position than mine—that if the current Standards Committee is reluctant to take on this responsibility in its current format, that should be taken as very serious evidence indeed that the Bill is not effective, and is not likely to be seen to be effective by the people who would actually have to implement it.
Too often we in this building do not take sufficient account of the views of those who are going to have to interpret and deliver what we decide. There is clear evidence from what was said at Second Reading by the noble Lord, Lord Campbell-Savours, that that is precisely the situation in this case. On those grounds at least, I hope that the Government will review this issue.
Lord Forsyth of Drumlean (Con): My Lords, it is an important principle that the punishment should fit the crime. Although a criminal act may not have been carried out, it is important that the committee has a range. I do not know enough about the workings of the committee to know what would have merited five days, 10 days, 15 days or whatever, but it strikes me that 10 days is far too narrow a spectrum. Someone may have done something which is pretty unacceptable but not sufficient to justify them being recalled. If the committee decides on nine days or eight days, I can just imagine what the hue and cry might be from certain sections of the media.
The very process is apparently designed to improve public confidence in the House of Commons, and indeed my noble friend has talked about the position of the lay members. I see that debate as being another manifestation of the House of Commons not having confidence in itself and its own Members, and responding to that kind of pressure not by putting its own house in order and having systems that are seen to be workable and effective, but by looking to some external body. Let us not forget the arguments we had on the previous amendment.
At one time when I was younger, I was in favour of capital punishment. Two things persuaded me to change my mind. One was that innocent people could be convicted and the other was that juries might not be prepared to convict in those circumstances. I am worried about the Standards Committee finding itself thinking, “Well, if we give nine days, people will say that that is a ridiculously short suspension, so we have to go for 10 days”, which may not be justified. I do not understand why this has been compressed. Given that the Government started off with the view that it should be 20 days, it should be very easy for them to accept this amendment.
Lord Cormack (Con): I entirely agree with the noble Baroness, with whom I had the great pleasure of serving when I was acting as deputy shadow leader in the other place. We worked together on the Privileges Committee and I came to have a very high regard for her total integrity and judgment. I still have that high regard. What she said this evening was entirely right.
I think that the other place is in danger of talking itself down. That is something that we really need to focus on. I remember reading many years ago a comment by one of the great 18th century admirals—I think from memory it was Admiral Rodney—who, as many others did, served in the House of Commons. He made a remark to the effect that there was no greater honour that any man could have—it was just men in those days—than to be in the House of Commons, representing a constituency. That was long before the days of anything approaching modern democracy. When I was elected in June 1970 I certainly felt that. I am sure that those others of your Lordships’ House who have had the privilege of serving in the other place would have had similar feelings.
In any group of 600 or 650 people you are bound from time to time to have some who transgress. However, it always has been and it is—and please God it always will be—the exception. For the past few years, since the expenses scandal and the witch-hunt that followed—and it was a witch-hunt—there has been a real reluctance on the part of Members of the other place to think highly, not of themselves, but of the institution of which they have the honour to be Members. We are, in fact, playing to that tune in putting this Bill through Parliament. I accept that it is going to go through. I regret that infinitely, because I think it does no service to Parliament in general or to the House of Commons in particular. That is a deep sadness to me and, I know, to many others.
However, if the Bill is to go through, this amendment is essential. Sentences of a few days can be given for offences which are in no sense improprieties in the generally accepted sense of the word. Every institution must have the power to discipline its members. If somebody is consistently failing to obey the Speaker or to abide by the rules of the House, of course they will suffer. We know some who have done so. I can think of the late Lord Bannside as Ian Paisley; Andrew Faulds, one of my dearest friends; Tam Dalyell, who was mentioned earlier; and others, who have, for perfectly honourable reasons, even though I may have disagreed with them, flouted the rules, been named and excluded for a period. But the House of Commons would have been a much poorer place without any of those Members. The thought that anyone like that, for a parliamentary transgression, could be in danger of recall is just too awful to contemplate.
This places a great weight on the shoulders of those who serve on that committee. I am bound to say that I regret that there are lay members on the committee, because I think it should be, as it always was, a committee of Parliament. I agree entirely with the noble Baroness when she said that, as Leader of the House, she decided not to chair the committee and that the chair should be a respected Back-Bencher. I think that that was a very wise and modest decision. It was the right decision. You should be judged by a group of your peers, unless you are transgressing the law of the land, and then, of course, other procedures follow. We all recognise that. However, I would beg my noble friends on the Front Bench—and particularly the Front Bench opposite, because this originated with an Opposition-led amendment—to think again about this. For 20 days, the offence has to be reasonably serious.
The other point alluded to by the noble Baroness, which was a very good and powerful one, was that there could be a danger of politicising these things, in a party sense, particularly in the sort of frenetic pre-election atmosphere that we have at the moment. One of the distinguishing features of the other place, and indeed of this place, is that Members in committee—particularly Select Committees, one of which I had the honour of chairing for five years—look at issues on their merits and seek to have recommendations that address the issues without polarising or dividing the committee. I would deplore anything that led to the former tendency in the Standards or Privileges Committees.
The least that we can do to help mend this very broken vehicle that is being pulled before us is to accept this amendment. I hope we can accept it tonight, without any Division or controversy at all. If not, I hope it can be accepted on Report. It goes just a little way to making a Bill that has come about, frankly, because certain people do not have enough confidence in that great institution at the other end of the Corridor and because party leaders have been rather craven—I use the word deliberately—a little better than it is at the moment. We want to put this right. This amendment will achieve precisely that.
Lord Grocott (Lab): My Lords, I thought that my noble friend Lady Taylor put it very well in terms of the huge significance of a 10-day suspension, with it basically being the end of a parliamentary career. It is rather like the point about the death penalty made by the noble Lord, Lord Forsyth. This is not a marginal decision between whether you give someone nine days or 10 days; it is not even the difference, to use a footballing analogy, between a yellow card and a red card. It is the difference between a yellow card and a ban for life.
We touched on this in earlier exchanges, but it seems to me that being suspended for 20 days clearly indicates a very serious offence. That is shown by the House of Commons Library research paper, according to which there have been just two cases in the last 25 years when that would have happened. As we have all remarked already, that would be even less likely to happen if it was known that it would lead to expulsion from the House because it would trigger a petition—as it would have, had this provision been in existence then. There has to be some doubt whether even the two that passed the test, if you like, would still pass the test, because Members would be very reluctant to impose a 20-day suspension.
Perhaps we are all in danger of repeating ourselves, but surely the position as it stands at the moment is that the House itself can expel someone and that, in effect, the provisions of this Bill—as it stands, a 10-day suspension; as it originally stood, a 20-day suspension—amount to the equivalent of expelling someone from the House. My view is that if that is what the House wants to do, the House has the power to do it now and we do not need a Bill to enable it to do that. To that extent, as with so many of the other provisions of this Bill, the organic mechanism by which Parliament operates tends to deal with these matters without introducing legislation that is not needed. That is the
substantial point I want to make, but I want to ask a question to which I should know the answer, and I doubt whether the Minister will know the answer immediately.