I trust that your Lordships will bear with me as I try to fill the giant gap left in our counsels by the death of my late friend Lord Kingsland, one of whose last characteristically incisive speeches in this House was his clinical dissection of this sorry Bill at Second Reading.
My late friend played a constructive and effective part in negotiations that changed this Bill from being a highly dangerous measure to one that still gives profound grounds for disquiet but has been improved by the major changes that the Government have already made. I thank the Chancellor of the Duchy of Lancaster for being prepared to listen in this process, but I must also say bluntly that so far she has listened with only half an ear, as is demonstrated by the amendments in her name that we will discuss later this afternoon. They do not go far enough and, if she cannot go further, I shall ask your Lordships to make further changes to the Bill. Indeed, I hope that the Committee will insist on some of those changes if matters cannot be resolved before next Tuesday.
We have heard much from the noble Baroness about the public's concern about parliamentary expenses, which is right and well understood by all. However, it does not mean that Parliament should abrogate all its responsibilities. There is no major quarrel about those parts of the Bill that deal with the management of expenses, although, if recent events have shown anything, it is that nothing is more powerful than transparency. Indeed, we have tabled no amendments to Clauses 1 to 4.
However, this Bill went and still goes very much further. We are making laws, creating new criminal offences and dealing with a Bill obviously made up in a hurry and now being amended in a hurry, too. We have agreed to use our endeavours to let the other place have the Bill that they have asked for before the Summer Recess, but we will not be frightened by anonymous spin into letting a bad Bill become bad law. The old adage applies: legislate in haste, repent at leisure. That is one inescapable reason why a sunset clause to some clauses in this Bill is essential to enable the new Parliament that we so desperately need to decide on a long-term regime and to prevent error and, still worse, injustice from being embedded into our political system. The sunset clause tabled by the noble Baroness is simply inadequate and she needs to go much further on it. We will deal with that when we come to it.
This amendment goes to the heart of the deep constitutional anxieties raised by the Bill. It addresses one of the most important issues debated at length in another place and here at Second Reading: the relationship between Parliament, the Executive and the courts. That had, I thought, been settled in 1689 and 1701, so it has been utterly astonishing to find the basic freedoms of Parliament being casually thrown into doubt. No one who has read the comments on this Bill-in-the-making by the Clerk of the Parliaments, by the Clerk in another place and in the distinguished report of your Lordships' Constitution Committee can have any doubt that an amendment such as this is needed. Rarely have I read such coruscating comments in any documents laid before the House. No one who listened to the powerful speeches in your Lordships' House at Second Reading, including those of the noble and learned Lord, Lord Woolf, and my noble friends Lord Goodlad and Lord Higgins, could have any doubt that a firm and explicit defence is needed.
Article IX of the Bill of Rights sets out clearly that the debates and proceedings of Parliament are not matters for courts to question. That is not an archaic and irrelevant principle. Nor are parliamentary proceedings matters for executive appointees to dictate, as was suggested in the original Bill. The ability of MPs to raise their constituents' concerns and represent their views depends on this protection. The possibility that this Bill shakes that protection shows just how little thought the Government have given to the content of this Bill as opposed to the content of the press releases surrounding it. The Government have conceded that this Bill raises these concerns. They have been shedding clauses as scrutiny of the Bill has proved beyond even their ability to deny that they have breached privilege.
The amendments in the name of my noble friend Lord Jenkin identify further areas where the same arguments apply and have been made. We all know what some in the Government will have told the noble Baroness to say as she takes up her folder with a tag marked "Resist". But I ask the noble Baroness to reply today as the Leader of the House and a good parliamentarian and to answer the question why on earth she would not accept this fundamental amendment.
At Second Reading, the noble Baroness tried the other old Minister's line of, "It isn't necessary". She told us that the Government,
"do not believe that the Bill is incompatible with Article IX of the Bill of Rights. It ... will not change the relationship between Parliament and the courts".—[Hansard, 8/7/09; col. 747.]
If that is the case, there can be no reason in principle to reject this amendment, for it states explicitly what she claims is the case.
We need a firm affirmation in the Bill and a clear sign to the courts that this Bill is not and must not be amended to become any invitation to anyone to detract from the hard-won freedom of Parliament in Article IX. I hope that the Government will feel able to accept this amendment, which would lay to rest the concerns expressed in such powerful terms by noble Lords who are much more experienced in legal matters than I am. Above all, as a parliamentarian who has learnt to be just a little distrustful of placing Parliament's rights and our ancient freedoms in the hands of this particular Executive, I believe that we would be wise to make it clear that we hold the principle of Parliament's sovereignty as firmly in the 21st century as did our forebears in the historic convention of 1689.
Yes, I can make it quite clear. We will certainly press this to a vote. I find it extraordinary that anybody would wish to vote against it. I beg to move.
My Lords, I realise that this is an unusual procedure, but with the leave of the Committee it might be helpful if I make a few comments before we debate the first group of amendments. As I said at Second Reading, Parliament and politics face a huge task in seeking to dispel public anger with our politics and politicians and to replace it with public trust and confidence instead. That is what this Bill is all about. Its fundamental purpose is to replace the self-regulation of expenses, allowances and financial interests with a system of independent, transparent and robust regulation.
The Government have listened carefully with probably one and a half ears to what people both in this House and the other place have said about the Bill. In the other place, amendments were made to provide that the Bill will not set aside parliamentary privilege and not include a statutory requirement for there to continue to be a code of conduct incorporating the Nolan principles. Following the debates in the other place and in the light of what I heard in this House, a number of government amendments have been tabled. I am grateful to noble Lords for their trenchant comments made at Second Reading.
Further to my letter of
I could go on, but I come instead to the sunset clause. We have tabled an amendment to require that the parts of the Bill that relate to offences be continued by order every two years. We believe that that approach is about balance. However, I hear what the noble Lord says and I am minded to return to the sunset clause, which I would call a review clause, later in the debates. Also, as noble Lords will recall, I gave a commitment that the Bill should be subject to formal post-legislative scrutiny within the next two years.
In order to respect the strength of feeling in this House on the issues of principle that have been raised, I am happy to accept Amendment 1 on the Marshalled List in the name of the noble Lords opposite. I am also happy to accept the principle of Amendment 2, with some exceptions. I undertake to return to this at the Report stage. Your Lordships will recall that I gave an undertaking that this legislation would not apply to the House of Lords and, of course, the commitment still stands.
While the debate has been lively, I hope and think that we can agree on the key principles that are central to the Bill. The current arrangements for administering MPs' allowances must be replaced. We must respond to the public's legitimate concerns. There should be an independent body to administer and oversee MPs' allowances and the registration of financial interests, and any new system of regulation should be independent, transparent and robust. I have been listening and I have acted accordingly.
I am grateful to the noble Baroness. I have to say that I am sorry that that statement has been made before I could explain why Amendment 1, far from clarifying the position, actually creates some confusion and why it is unnecessary. I had better say that, even though the Government have indicated that they will accept the amendment. I was not able to be here yesterday, but let me say at the beginning how sad I am that that most noble and most learned Lord and friend, Lord Kingsland, is not here today to deal with this and how gallantly the noble Lord, Lord Strathclyde, has stepped in, better than most lawyers.
The noble Lord, Lord Strathclyde, said that he thought that the freedoms of Parliament had been casually thrown into doubt. I do not think that that is true. He has not identified anything in the Bill that puts into doubt either Article IX or the way in which it has been interpreted. The problem with the amendment as it stands is that it applies only to this Act, not to other Acts. Far from clarifying the law, it leaves it in a state of uncertainty, as we will see when we come to judicial review, a tribunal, fairness and other matters. It does not grapple with the central problem identified by the Joint Committee on Parliamentary Privilege, which is that Parliament is subject to Article 6 of the European convention and when it uses its disciplinary powers in an extreme way there are problems about fairness.
The present law is perfectly clear and any suggestion that the courts might need Amendment 1 in order to keep off the grass of Parliament's lawns is totally wrong. The great case that decided this, in which I appeared on one side, was Pepper v Hart. As we have no constitutional legal adviser and the Law Officers are not here, I remind your Lordships of what was made quite clear in that case. The noble and learned Lord, Lord Browne-Wilkinson, said:
"Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected Members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech). But even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word 'question' which the Attorney-General urges".
"In my judgment, the plain meaning of Article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal, for what they said, and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule"—
this is the rule against Hansard being used as an aid to statutory interpretation—
"will not involve the courts in criticising what is said in Parliament".
He then said this, which is very important in the context of the Bill:
"Moreover, the Attorney-General's contentions are inconsistent with the practice which has developed over a number of years in cases of judicial review. In such cases Hansard has frequently been referred to with a view to ascertaining whether a statutory power has been improperly exercised for an alien purpose or in a wholly unreasonable manner".
He cited as an example the case of Brind, where Hansard was used for that purpose in judicial review proceedings. In conclusion he explained why there was no threat to Article IX. The case of Prebble, which I shall not bore the Committee with, was a Privy Council decision where the law was made even clearer.
The judges have made quite clear the boundaries of Article IX and the important ways in which they must respect the laws of Parliament and not intrude. I still await to be told by someone what it is about this Bill—especially after the government amendments described by the Leader of the House—that will put any of that in jeopardy. There is the matter of fairness, which we will attend to later, but that is not covered in the amendment. We are rushing to accept the amendment and to get the Bill through. That happened once before, with a previous Government, when we rushed to amend the Defamation Act to enable Neil Hamilton to sue the Guardian, and Lord Simon of Glaisdale and others on the Cross Benches explained why that was a constitutional monstrosity. This amendment is not a constitutional monstrosity, but I urge those who support it to explain what it is about the Bill that requires it.
I fail to understand the noble Lord's position. He says that the amendment is not necessary, but is he saying that there is any harm in it?
Any harm would be, if in future, because the amendment refers only to this Bill, it were to be interpreted in some way as glossing the position so far as other Bills are concerned. That is the only harm that could be done. The main case against it is that it is wholly unnecessary and that the courts have made the position absolutely clear.
If we hear my noble friend, who I think was making an intervention, I am sure that we can then move to the noble Lord when the noble Lord, Lord Lester, has responded.
The noble Lord leaves me completely bewildered. Is he saying, after the Leader of the Official Opposition has moved the amendment and the Leader of the House has accepted it, that he will demonstrate the wisdom that the Liberal Democrats showed last Wednesday and divide the Committee and vote against it? That would break an all-time record for irrational behaviour in the House of Lords.
I do not think that this is an occasion for forensic sarcasm. I am simply saying that Parliament should not legislate in vain and that this is not a necessary amendment, because the courts, by their case law, have shown perfectly well the need to respect Article IX of the Bill of Rights. Since no one has yet explained what threat the Bill poses to Article IX, I am saying that those who support the amendment on the government or the Conservative side need simply to inform the Committee of the problem about Article IX in the context of the Bill, other than that of fairness. That is all. Parliament is entitled to have that question answered.
I would not dream of voting against it. All I am saying is that we are a legislative body looking at a piece of legislation in a hurry and that someone needs to explain to the Committee what the problem is. I have not heard anybody do so. The late Lord Kingsland, in a marvellous speech, did not identify the problem. I certainly would not oppose the amendment, but it would be good if Parliament were to be informed by somebody of exactly what the problem is about Article IX.
As I support the amendment, I am relieved that noble Lords are equally as bewildered as me. I simply do not begin to understand the logic, the sense or the direction of the speech of the noble Lord, Lord Lester.
I am most grateful to the Leader of the House for saying that she accepts the amendment. It goes to the essence and heart of the Bill. It was drafted by Lord Kingsland and bears the mark of his authority.
It is a purpose amendment, related to Amendment 2, also drafted by him, which goes to the essence and purpose of the Bill. That is nothing to which the noble Lord, Lord Lester of Herne Hill, has referred. The purpose of the Bill is to enable another place to devise its requisite reforms and implement its domestic procedures as to conduct of honourable Members by virtue of the constitutional freedoms of both Houses under the Bill of Rights. That is the essence of it.
As the noble Baroness accepts it, I can see no reason why, if the Bill is related only to that purpose, it should not be accepted by the House. But it is not. That is the trouble—hence the legal bewilderment. I am a lawyer, and I very often get bewildered, but I have never been as bewildered as I am today. One has to accept the fundamental concept that the Bill of Rights gives parliamentary freedoms to both Houses and that if that is slighted by this Bill, it would set an evil precedent that could well affect this House in time to come. We can forget about sunset clauses—it is nothing to do with that observation.
Second Reading enabled a series of amendments to be tabled—I think quite a few are in the name of the noble Lord, Lord Lester—which inhibited such entitlement by proposing statutory ordinance which had to be accepted by another place, such as resort to courts of law, appeals, and one thing and another, which are without the constitutional provision. If one slights this provision, this is dealt with in the related purpose amendment in the name of my noble friend, Amendment 2. In time to come, it will affect, or could affect, this House.
I have only a little more to say, and it is not on the basis of a legal argument in the Appellate Committee. This is not the Supreme Court, thanks heavens. The Bill was presented as a sort of political placebo, without consultation on any aspect of constitutional reform. It is not for me to criticise, but that is a fact.
The Bill should pass but—in a sense this has been said by my noble friend Lord Strathclyde—only if its purpose is limited to acknowledgement and respect of the freedoms of the other place and to enable it to do what it wishes after its own fashion.
The four amendments grouped with Amendment 1 are in my name. It prompts me to ask the noble Baroness some questions. Let me say straight away that I am delighted that she has said that she will accept Amendment 1 in the name of my noble friends Lord Strathclyde and Lord Henley. I am sure that that will go a long way to meeting the anxieties which were so eloquently voiced at Second Reading.
My four amendments are designed to make clear that various activities that will be carried out under the Bill will be regarded as proceedings in Parliament and will therefore qualify for the protection that is offered by the Bill of Rights for such proceedings. They concern the question of the code, the register of interests, the question of investigation under Clause 6 and, although I realise that the noble Baroness has already indicated that she is not going to move Clause 7, there were items in that clause that would have needed to have been subject to the same protection.
One of the points that is so important to make for the public is that when one asks for privilege protection for Parliament, for both Houses, one is trying not to secure concealment but to make certain that none of these matters can be justiciable in the courts.
A Member of Parliament should be responsible to his constituents, not to the courts, a point that was made by many noble Lords at Second Reading. Will IPSA decisions be justiciable, will they be protected by Clause 1 or do we need the protection of one or other of these amendments? It is a question of the code of practice.
If they remain justiciable in the courts, Parliament will have to answer to the courts. At Second Reading, the noble and learned Lord, Lord Woolf, eloquently made it clear that this is a feature of the separation of powers between Parliament and the courts that so far the courts have been extremely reluctant to breach. They may have to look at the boundaries of a matter, but, once it has been decided as a matter for Parliament, it is not a matter for the courts. I am not clear whether the amendment that I understand the noble Baroness is going to accept will cover these matters.
Where Clause 6 deals with investigations, it says that an inquiry can be launched in response to a complaint by an individual. It is not difficult to imagine a case where a thoroughly disgruntled member of the public, dissatisfied with what is happening under the Bill, may wish to take the matter to court. I want to be absolutely assured that there is no possibility of a member of the public—
May I just finish my sentence? I want to be assured that there is no possibility of a member of the public launching a case for judicial review on the grounds that IPSA, the commissioner, or the Committee for Standards and Privileges have not done their job properly. That must be a matter for the House of Commons. If the noble Baroness can give—
I am sorry; everyone wants to get on. If the noble Baroness can give me that assurance, despite what my noble friend said about supporting these four amendments, I would not believe it necessary to press them. However, if the effect of accepting Amendment 1 will be to leave these new institutions still able to be taken to court by a member of the public, or a Member of Parliament, or whoever, then we have not got what we are seeking in order to ensure that the Bill of Rights fully applies to everything under the Bill. I hope that she can assure me on that.
In the House of Commons debate, which I will not bother to quote, her right honourable friend Jack Straw, in response to a similar amendment to one of these, said that the Government had not closed their minds to it. What the noble Baroness said some moments ago in response to my noble friend Lord Strathclyde appears to mean that they really had not closed their minds to it and are now minded to accept that amendment. I would like to see further assurances, though, that nothing that is done under the Bill by these parliamentary institutions is likely to result in a judicial review and the matter coming before the courts.
Briefly, I have spent much of my time over the past week reading through the Bill. I firmly endorse the point made by the noble Lord, Lord Jenkin of Roding. The issue of whether areas of the Bill are justiciable is critical to the debates that will now take place. The Bill is effectively in two parts; the first dealing with the independence of the Parliamentary Standards Authority and the second with the question of offences. The Government's handling of the first section of the Bill must depend very much on answers that my noble friend has given. While I wholeheartedly accept, as does the whole Committee, that the Government have taken the decision to accept Amendment 1, this residual area must be clarified before we proceed.
Briefly, all my House of Commons friends individually tell me that the morale of that House is absolutely terrible. They are shell shocked and shattered. They have been spat on by their constituents and ghastly things have happened to them. The vast majority of them are men of principle, and that applies to both sides of the House of Commons. They go into Parliament for service to their country. It is up to us, who are not as yet affected—and I hope we never will be—by the current vitriol, to try to help to give the House of the Commons back its self respect. In doing so, we must stick up for its Members' rights, because they are at the moment perhaps feeling a little frightened so to do.
I find it strange that we are continuing this debate. I listened carefully to the noble Lord, Lord Jenkin, who was asking for lots of assurances on particular parts. I respect him, and respect even more my noble friend Lord Campbell-Savours. But surely a new clause right at the start saying "Nothing in this Act"—"nothing" is plain English; it could not be plainer—includes everything that the noble Lord, Lord Jenkin, adumbrated. Each thing is excluded because it says here "Nothing in this Act". I would have thought that we could get on to Clause 2 as quickly as possible.
I raise a simple point. We always look at the Bill of Rights as something that created a massive, monumental right. It did not. It did not create anything. It declared rights that were already there, inherent in the very institution of Parliament. Indeed, the Bill of Rights is only one manifestation of those rights. They are wider than Article IX. The fact that they were spelt out in statute did not change them or confine them in any way at all.
In 1840, Parliament passed the Parliamentary Papers Act, after Stockdale v Hansard. That in no way limited it rights; it merely declared rights that would have been there in any event, even if that declaratory instrument had not been made. Since it seems that those rights may well be wider than the Bill of Rights, I ask with great humility that the Government—I congratulate the Government; the noble Baroness the Leader of the House has placed the whole House of Lords in her debt through her decision on this matter—consider that the reference should be not just to the Bill of Rights but also to the parliamentary privileges of which the Bill of Rights is a manifestation.
I will clarify one point. What noble Lords have been saying is completely right: the issue relates to judicial review. The noble Baroness the Leader of the House made it clear at Second Reading, at col. 947 of Hansard, not only that there is no infringement of Article IX in the Bill but that a court faced with a judicial review would not be able to consider proceedings in Parliament because that would not be possible under Article IX. I completely agree with her.
However, there could of course be judicial review. If I were to go on, I would explain how judicial review quite often arises in cases involving Article IX. Accepting Amendment 1—although it clearly says that nothing in the Act affects Article IX—does not resolve the underlying problems. I was attempting to explain that the courts have been resolving those problems clearly, and in a way that we should respect.
For some 10 years, until the last election, Lord Kingsland and I shared a very small room just off the Peers' Lobby. For much of that time I had grave concerns about his health but he fought back valiantly and continued to make a major contribution in the House of Lords. Perhaps I might therefore be allowed to say that, in 45 years' experience in both Houses of Parliament, he was among the finest debaters that I heard in either Chamber. He will be greatly missed not only today but in the future.
I am sure we all very much welcome the amendment moved by my noble friend the Leader of the Opposition and its acceptance by the Leader of the House. This, in effect, provides a safety net, but safety nets have holes in them. It would be quite wrong for us to assume that we can go ahead and not deal with the detailed provisions in the Bill, which raise serious questions about its relationship to the Bill of Rights, without clearing up those particular clauses. We cannot simply leave a lot of rubbish all over the place and say, at the end of the day, "Don't worry—the courts will have to take account of this safety net". That would be a very bad way of doing it. Who knows what cunning judicial arguments might be put forward, based on the fact that we have left the matter in an uncertain state in the Bill?
The noble Baroness has been immensely helpful throughout, but we are still left with the view expressed by the Clerk of the Parliaments in his evidence, that there are main provisions in the Bill which—by leaving open the possibility of judicial examination in the House's internal rules—could threaten the principle of parliamentary privilege. It is quite clear that that is still the situation. The noble Baroness kindly wrote us a letter, to which she referred, on
"Under the amendments, the IPSA will be responsible for determining the procedures",
but not for "individual cases".
So far, so good, but she goes on to refer to the other changes, which she argues will reassure us on these matters of parliamentary privilege, but it is somewhat confusing. To some extent we have problems because we now have too many commissioners and committees. It is certainly unclear from the noble Baroness's speech this afternoon to which commissioner she was referring. She just refers to "the commissioner", whereas there are at least two and probably more floating around the place. One would have thought that the arrangements that the noble Baroness has now proposed are open to some doubt. Her letter goes on:
"These arrangements replicate those which presently exist, with the substitution of the new Commissioner for the present Parliamentary Commissioner for Standards".
I am not clear why suddenly substituting the new commissioner—namely the one mentioned in the Bill—for the present commissioner for standards somehow solves all the problems. I am not at all clear as to what happens to the present parliamentary commissioner for standards; he appears to disappear into some limbo where no one thinks that he is relevant to these matters.
The noble Baroness needs to spell out in rather more detail precisely how what she is now proposing will deal with the concerns regarding parliamentary privilege. For the reasons that I have mentioned, it is very important that we should accept amendments through the course of the Bill—on whatever the appropriate clauses are—to make sure that we are not left with what one might almost describe as the smile on the face of the Cheshire Cat after the Cheshire Cat has disappeared. That will not necessarily be completely protected as far as this amendment is concerned, much as I welcome it and its acceptance by the noble Baroness.
Before my noble friend sits down, I assure him and the Committee that I cut my speech but I accept the point that my noble friend made that statutory ordinations, to which I referred, should be debated because that is of interest and help to another House. All I am saying is that this House should not impose them.
I listened very carefully to what the noble Lord, Lord Lester, said when he referred, as he did on Second Reading, to Pepper v Hart in which he and I took part. The question mark, which I do not think that he answered, about where there might be doubt in the Bill is well highlighted by the four amendments of my noble friend Lord Jenkin of Roding, which deal with codes, investigations and recommendations of the new commissioner. Unless it is spelt out that those are proceedings in Parliament, and are covered by the relevant amendment, there may be doubt about that. It may be said that proceedings in Parliament comprise our debates and committee work, but that the work of the commissioner is in some way not a proceeding in Parliament. I would like to think that that was incorrect but it does not seem to me totally clear. I would be very grateful to hear what the noble Baroness the Leader of the House says about it.
Before the noble Baroness winds up the debate, I should point out that in her first speech she said three very important things. First, she said that she would accept this amendment, for which I am incredibly grateful. That is absolutely the right decision. I was surprised by it but it is entirely the right thing to do. Secondly, she said that she would accept the principle behind the second amendment. If she could put a bit more flesh on the bones of what she means by that, I will not move the second amendment. I think she said that she would bring back amendments on Report to make that clear. Thirdly, she said that she would tighten up the sunset clauses which the Government have already put down. That would be extremely helpful.
I say to the noble Lord, Lord Lester, that the noble and learned Lord, Lord Woolf, said on Second Reading that the Bill,
"creates a danger of undermining"—[Hansard, 8/7/09; col. 688.]
some of our constitutional safeguards. It is for that reason that I put forward this amendment. I look forward to hearing the noble Baroness's speech. After she has spoken and confirms what she has said, I shall be very happy with the amendment.
First, I say to the noble Lord, Lord Higgins, that John Lyon, the existing parliamentary commissioner, will remain responsible for all issues relating to conduct. He will be responsible to the CSP. The IPSA commissioner will deal purely with financial breaches within the framework set out by IPSA. The IPSA commissioner is needed to take these issues out of the control of Parliament; so there are two commissioners, one within the remit of IPSA and the other the parliamentary commissioner, John Lyon. I trust that clarifies the situation.
The noble Baroness is short-handing this too much. I think that the parliamentary commissioner is quite another person, but at all events is she speaking of the Parliamentary Commissioner for Standards? It is very important to spell out the full title as we go along. If there is a parliamentary commissioner, I suspect that he has nothing to do with this.
My apologies for my shorthand. In future, there will be two commissioners. There will be a person known as "the commissioner"; he is the person who we are now setting up who will look at issues relating to IPSA. Then there is the Parliamentary Commissioner for Standards, who is currently John Lyon; he will continue to be the Parliamentary Commissioner for Standards. He is the person who will deal with all issues relating to conduct. There we have two commissioners. I hear the concerns expressed—
In the Second Reading debate it was probably made clear—and I beg your Lordships' pardon if it was not—that that person to whom the noble Lord just referred will henceforth be called, or known as, the commissioner. So that person whom the noble Lord referred to is the commissioner—
Clause 1(3) states categorically:
"There is to be an officer known as the Commissioner for Parliamentary Investigations ("the Commissioner")";
hence my shorthand in calling that person the commissioner.
I hear the concerns expressed by the noble Lord, Lord Lester, and I am grateful for his advice. However, we accepted the amendment because there are clearly such strong feelings in this House about the issue, which we did not want to obscure or to damage consideration of wider issues in the Bill. We agree that the amendment must be regarded as being for the avoidance of doubt, although we can see nothing in the Bill, as drafted, which affects Article IX; but we are happy to accept the amendment.
I turn to the amendments tabled by the noble Lord, Lord Jenkin. There are a number of reasons why the Government consider that these amendments and the approach taken in them are not acceptable. First, they are at odds with the approach that the Government have taken to privilege and, I might say, at the urging of the other place and noble Lords. Since the removal in the other place of the provision explicitly dealing with privilege, our approach has been to ensure that the Bill does not affect parliamentary privilege in any way.
That is one of the reasons why we have tabled government amendments in this House removing IPSA's recommendation and direction function, and the offence of paid advocacy. In short, the new scheme will not affect parliamentary privilege and, taking the views of noble Lords and the other place to their full extent, we have accepted Amendment 1. In other words, this Bill will explicitly not affect Article IX of the Bill of Rights—the key provision which deals with parliamentary privilege. However, the noble Lord's amendments would affect parliamentary privilege.
The Government are bringing forward amendments to make it clear that the work of IPSA and the commissioner will be limited to administering the schemes on allowances and the code on financial interests, and making factual investigations about alleged breaches of either. The outcome of any such investigation will be passed either to the Committee on Standards and Privileges or to the police to take forward. The work of the committee—the Committee on Standards and Privileges—is, of course, already fully covered by Article IX.
I have already mentioned that the offence of paid advocacy is removed. This means that IPSA and the commissioner will not deal with privileged subject matter. There is then, we believe, no need to extend the cloak of privilege around them.
I want to be helpful. Will my noble friend ask her officials to look at the Hamilton case where, if I recall correctly, Mohamed Al Fayed attempted to secure a judicial review of a decision by the Commissioner for Standards and Privileges in the House of Commons? I think that it was in 1999. The application failed, but the Government, having studied the judgment, might wish to revisit the issue raised by the noble Lord, Lord Jenkin of Roding.
The noble Baroness said that the Government would bring forward amendments to address some of the points made by the noble Lord, Lord Jenkin. Could the noble Baroness say which amendments they are on the Marshalled List?
I will come back to the noble Lord in a minute: I do not have that information to hand.
Will the Leader of the House help me? The questions about judicial review will not go away. Does she agree with me, first, that decisions are judicially reviewable, as she has said already? Secondly, if that is the case, and if, for example, an officer of the House of Commons or the Commons itself were to act, through their disciplinary powers, in a way that involved a criminal charge or the destruction of a civil right, would that not raise problems that the courts would then have to resolve—a situation that is not solved by Amendment 1? This is the kind of question that noble Lords on all sides of the House are asking. That is the problem that the Joint Committee on Parliamentary Privilege identified 10 years ago. It said that there had to be a parliamentary privileges Act, but there been no such Act—that is the problem that we face today.
I am sure that is the problem that we must address today. I do not have an answer at the moment, but I will come back to noble Lords. In the debate, I have listened to the views of noble Lords who believe that the amendments tabled by the noble Lord, Lord Jenkin, are necessary in order to safeguard privilege. I have also heard the advice of my noble friend that I should ask my officials to look at the case of Al Fayed v whoever in the 1990s. This is clearly an issue that I will wish to return to. I do not give any undertaking to reverse the Government's position, but I do undertake to investigate the matter thoroughly and come back.
The noble Lord, Lord Strathclyde, asked me for more details about our reaction to Amendment 2. I hope that it will be acceptable if I deal with that now. The issue that I wish to return to on Amendment 2—the reason why I wish to see it withdrawn and to table another amendment—is that the Bill gives your Lordships a role in the administration of the new regime. The chair and members of IPSA, and the commissioner, may be removed from office only following an address by Her Majesty to both Houses of Parliament. I know that amendments have been tabled on this. The accounts and annual report of IPSA must be laid before each House of Parliament. Therefore, I wish to come back with an amendment that takes into consideration those parts of the Bill. However, I am wholly in agreement that we put in the Bill the fact that the vast majority of the Bill does not pertain to the House of Lords—it is just these two small points.
Of course I accept the noble Baroness's assurance that she will look carefully at the first two of my four amendments—the others disappear with the disappearance of Clause 7, which I suspect that the Committee will accept later. I ask her to look at them carefully. I want to get to a position where the activities of the new bodies that we are setting up—IPSA and the commissioner—will not be justiciable, because they will be regarded as within the control of the House of Commons.
I understand the noble Baroness's point. She wants to demonstrate to the public at large and to the media that these are independent bodies. As my noble friend Lord Higgins said, that needs to be clarified because at the moment it is not clear at all. If there is one issue that stands out above all others—indeed, it was the subject of the extremely helpful letter from the Clerk of the Parliaments—it is what is to be regarded as justiciable in the courts and what is not. At the moment, I am not clear on that, which is why I tabled the amendments.
I do not think that the Government have ever accepted one of my amendments made in opposition. There is certainly a little ray of sunshine at this Dispatch Box this afternoon and I am extremely grateful for the assurances that have been given by the noble Baroness.
Amendment 1 agreed.
I accept the noble Baroness's assurances. There are other amendments grouped with this one. I look forward to seeing her amendments and I hope that she will consult not just me but others who have amendments in this group. On that basis, I shall not move the amendment.
Amendment 2 not moved.
Clause 1 : Independent Parliamentary Standards Authority etc
Moved by Baroness Hamwee
3: Clause 1, page 1, line 3, leave out "Parliamentary" and insert "House of Commons"
I shall speak to the Amendments 3 to 6 standing in my name and that of my noble friend Lord Shutt of Greetland. I am grateful to the noble Lord, Lord Strathclyde, who has just referred to them. I hope that, in considering how to deal with the noble Lord's amendment, the Leader of the House will also consider how to deal with the related point that we have raised.
We are concerned to ensure that all the terminology used in the Bill relates only to the House of Commons, save for the role of this House with regard to the authority and the commissioner, to which the noble Baroness has just referred. I do not want to discuss the merits or demerits of any of this at this point but we are concerned not to make it at all easy simply to transfer this legislation to an application to this House, whatever the assurances given today, which I do not for one moment doubt. We want to be sure that there is no confusion either in the text of the legislation or in its title, to which the later amendments in this group relate.
We propose to change the word "Parliamentary" to "House of Commons" in a number of places and also to change the acronym of the new authority. One of my noble friends suggested that IPSA had a good classical ring to it. I am sorry if we lose that, although it occurs to me that ICSA is more Greek than Latin, so the classicists might be consoled.
The noble Lord, Lord Cope of Berkeley, has amendments in this group and I look forward to hearing what he has to say. Perhaps I can ask him whether, in speaking to them, he can deal with the point about which my noble friends—particularly those who have come from the House of Commons—feel fairly strongly. I refer to the use of this House, which is far less partisan in its approach than the House of Commons sometimes is, in the removal of members of the authority and the commissioner, and that use perhaps being a good safety net. I beg to move.
With your Lordships' permission, I shall treat Amendments 13A, 13B and 20B as being still grouped with Amendment 3 and the others that we are discussing at the moment. The noble Baroness the Leader of the House has already referred to these three amendments, which are all similar, and so has the noble Baroness, Lady Hamwee, from the Liberal Democrat Benches. The point of them is very simple, at any rate in comparison with the things we have been discussing. When it is suggested that the chair of IPSA or a member of IPSA or the Commissioner for Parliamentary Investigations should be removed from office, should that be solely a matter for the House of Commons or should it be a matter for this House as well? The appointment of these various people is to be done by Her Majesty but on the recommendation of the House of Commons in the various procedures set out. Only the Commons, not the Lords, is concerned with the appointments.
It seems to me that all the matters under discussion are entirely matters concerning Members of the other place and that your Lordships should not be involved in a petition to the Queen to remove them. I think we should be placed in an awkward position if such an Address were to be moved to Her Majesty and the Commons agreed to it and then your Lordships were asked whether we agreed to it. Suppose we were inclined not to agree. We would get ourselves into a very peculiar position. It would be very difficult for us not to agree if the House of Commons had agreed that the appointment should be ended, so supporting an address to Her Majesty. If the Commons supported it when the particular person was entirely concerned with the Commons, it would be very difficult for us to make a different ruling. Without saying it is a matter of huge moment, or to press it too strongly, I suggest that we should consider whether these powers should be left to the Commons alone and that your Lordships should be taken out of the procedure for presenting an Address to Her Majesty.
This amendment seems to make complete sense. I have great sympathy with the amendment of the noble Baroness, Lady Hamwee. The noble Baroness, Lady Royall, has undertaken, more or less, to agree with Amendment 2 from the noble Lord, Lord Strathclyde. If that is the case, the Bill is nothing to do with us and concerns only the Commons. Therefore we probably should not do anything to interfere with it. If you put in the Bill only the words "House of Commons", there will be no confusion, as could be the case if you use the word "parliamentary".
I have reservations about the "not us, only them" approach to the Bill. The reality is that, in the longer term, the public will not stomach a two-tier structure whereby one end is perhaps subject to the criminal code and we are not. It is inevitable that, one day, we will have a Bill and it may not be the sort of Bill that we like. In reality, we would have to follow closely the arrangements which exist in the other place.
The other day, I heard my noble friend's reference to the model. I think it was in response to an intervention. The reality is that the Commons model will, in the end, apply here. I would have thought that the clear undertakings my noble friend gave at the Dispatch Box last week—that as far she was concerned at the moment, and certainly under this Government, there would be no movement whatever in favour of the introduction of a Bill in this House—would be satisfactory. Although I am not prepared to go to the wire over my noble friend's undertaking that she will accept Clause 2—in other words, put it into the Bill—I think it is quite unnecessary for us to do so. Indeed, I think it sends out the wrong signal. As I say, it will appear to those outside as, "We don't want it. They can have it, but we will not have it", and I think that is the wrong approach to take.
I hear the concerns expressed by my noble friend, who is very wise in his counsel. However, the Government are prepared to accept Amendment 2 in this slightly amended version. It is clear that the motivation for the amendments tabled by the noble Lord, Lord Shutt of Greetland, and the noble Baroness, Lady Hamwee, come from a desire to make the matter even clearer in the Bill. I am not persuaded that that is necessary or appropriate. There is nothing necessarily wrong in using the word "parliamentary" to describe a body whose functions relate to the other place. To give one instance, there is the current non-statutory Parliamentary Commissioner for Standards. I hope that noble Lords will consider that we have addressed the substance of their concerns by accepting Amendment 2.
The amendments tabled by the noble Lord, Lord Cope of Berkeley, are slightly different. They provide that this House would not be required to make an Address to remove from office the chair of IPSA, a member of IPSA, or the commissioner. The current provision means that such a person can be removed only on a Motion of Address from both Houses of Parliament. Although I accept that the position adopted by the noble Lord appears to be logical, that is in fact an important safeguard on the independence of those offices. It is imperative that this House must also approve any removal of those office-holders. Otherwise, the other place could be seen to be both judge and jury. It is worth noting that those measures build on the same procedures for removing members of the senior judiciary. It is an essential signal to the community that the independence of those persons is as important as the independence of the judiciary. I therefore ask noble Lords not to press their amendments.
I am obviously disappointed with what the Leader of the House has had to say about our amendments. The noble Lord, Lord Campbell-Savours, referred to the signals sent out. It is the signal sent out by this terminology that concerns us. I do not for one moment disagree with him about public perception and the possibility that we may have to come back to it, but the question is what the "it" is in connection with this House. I do not detect an appetite at the moment to debate the detail of that. I hear what the noble Baroness has to say and I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
Amendments 4 to 6 not moved.
Moved by Lord Tyler
7: Clause 1, page 1, line 11, after "Committee" insert "("the Committee")"
The Committee may be relieved to hear that there are no great issues of principle in this group of amendments, in contrast to the two previous groups. These are simple matters of correction and clarity. There is a whole series of drafting problems in the Bill, which I suspect are a product of the speed at which the Bill has been produced. All that we are trying to do is to be helpful by pointing them out in the hope that the Minister will be able to accept them or, at least, commit to government amendments to deal with any defects on that basis.
I shall briefly canter through the difficulties that we have encountered. First, on Amendment 7, it appears to us that there is no initial reference to the short title of the Speaker's Committee in Clause 1(5). The committee is, however, later referred to in subsection (6), so I anticipate that there is a need for clarity, although I understand that the Minister may be able to correct our correction, in that it is the view of officials that the correction should be in line 12, rather than in line 11 as it is in our amendment.
Amendment 18 is a probing amendment. I hope that the Minister will be able to explain why the interim chief executive will need to incur expenditure on behalf of the whole of IPSA without the approval of its chair or other members. That would seem to be out of character with the normal procedures of a similar organisation. Worse still, in paragraph 15(2) of Schedule 1, an extraordinary permission is given to the interim chief executive—"to do other things". Other Members of your Lordships' House have much longer experience than I have, but I have been either in or out of Parliament for 35 years and watching legislation with considerable personal interest during that period. I do not recall ever seeing any organisation giving to its chief executive the ability "to do other things". What sort of other things have we in mind? It rather beggars belief and is slightly mind-boggling, if I may put it that way. I have never seen such a phrase before. What exactly are the other things? Perhaps the Government can indicate what they have in mind. If they want to be more specific, I hope that they may be able to come back on Report and tie this down more securely.
Amendment 19 is again about drafting and no more. Paragraph 17(3) of Schedule 1 states:
"The IPSA must make such arrangements as it considers necessary to ensure that".
Ensure what? I can see the Minister nodding. I think that he, too, finds that a slightly curious way of expressing what seems to be in need of more careful formulation. We think that the Government mean that IPSA must make arrangements to ensure that it complies with paragraph 17(2), so that is what our amendment says; it does what it says on the tin.
Finally, Amendment 22 omits the rather clumsy phrase,
"as to which see further",
which has the feel of an A-level response to a question where the student wants to sound more formal and authoritative than he or she feels has actually been the case in a hastily constructed essay. We assume that the Government simply mean "under", and that is what we have put.
All these amendments are pretty straightforward. We are trying to tidy up a Bill that shows all the defects of hasty construction. That is what this House not only has an obligation to do, but, on the whole, is very good at doing. We hope that the Government will accept the amendments in this group. I beg to move.
Amendment 18A is in my name. It has been listed in the next group, but it refers to the point that the noble Lord, Lord Tyler, was making. The Bill says:
"The IPSA must make such arrangements as it considers necessary to ensure that".
That seems to be meaningless and unnecessary. If IPSA's administrative arrangements must be carried out separately, of course it has to make the arrangements to obey sub-paragraph (2), so why does it need to be told to make the arrangements as well? Sub-paragraph (3) is unnecessary. If it is to remain, the amendment tabled by the noble Lord, Lord Tyler, would make it clearer than it is at the moment, but it is quite unnecessary.
The Government expect to get Royal Assent on the Bill within a week, yet here we are with my noble friend Lord Cope and the noble Lord, Lord Tyler, pointing out some fairly elementary drafting mistakes. I do not know whether the Minister will accept the amendments, but can he say whether he believes that these mistakes are important, whether he thinks that there may be some more in the Bill and whether the Government will bring forward further drafting amendments before Report?
I think that I said in my opening speech on this group that we understand that the appropriate place for this amendment is actually in line 12, at the end of the subsection, to make it absolutely clear. We understand that the Government are going to make that suggestion, but perhaps that has not yet reached the Minister.
It will be a great pleasure to accept most of the amendments that have been so well spoken to by the noble Lord, Lord Tyler, and other noble Lords. As far as Amendment 7 is concerned, I am grateful to the noble Lord for telling me what I am going to say. He is right; it got to him slightly earlier than it got to me. Amendment 7 inserts a shorthand abbreviation for the committee on standards into the Bill. The amendment would insert the words "the Committee" so that the relevant provision would say, "There is to be a committee ('the Committee') known as the Speaker's Committee for the Independent Parliamentary Standards Authority". I assume that noble Lords hope that that would make it clearer that the committee in subsection (6) is the same committee. Noble Lords are right—the committee in that subsection is the same committee—and, although I do not think it necessary to add words to clarify the subsection, I am happy to accept the amendment, subject to moving the insertion so that it is consistent with the rest of Clause 1. Now that I mention it, that is exactly the point that the noble Lord, Lord Tyler, was getting at. We are happy to accept his amendment.
I invite the noble Lord to let us take away Amendment 18 and see whether we can come up with another form of words, although I am not sure that I agree with him entirely about the phraseology of the schedule. Having listened to him, I do not think that he does not want the interim chief executive to be able to do anything that involved spending money. Giving an interim chief executive powers to spend money is absolutely standard when setting up a new body of this type. Indeed, it may be an essential part of the setting-up process. Once again, I draw attention to the need for this body to be seen as independent of both Parliament and the Executive.
When the Minister reconsiders Amendment 18, will he also consider whether there is any need to say anything at all about the interim chief executive? The chief executive will have powers. An interim chief executive is merely someone who is appointed before the permanent chief executive is appointed, so why the need to make any distinction?
As I understand it, we want to get this institution up and running as fast as possible, perhaps before it is possible to go through the process of getting a chief executive into place.
I understand that, but as long as the institution is there, there should be no distinction between the first chief executive, who may simply be appointed to the position but not for very long, and the permanent chief executive, who will be the second appointment. This is not a big matter, but the Government are seeing problems where there may be none.
For once, I can come to the Minister's help in that I have set up and been a chairman of a public body—the National Rivers Authority—and I share the view that there is probably a need to set up an interim chief executive. The only difference when we set up the National Rivers Authority was that I was appointed first. The Liberal Democrats' point in moving the amendment—that it would probably be better if the chairman was appointed before the interim chief executive—is perfectly valid, but there is a need for interim arrangements when you are setting up a body, so we should not make too much of a fuss about it.
I am most grateful to the noble Lord and the noble and learned Lord, who have come riding to my rescue on this issue. Although we will reconsider the amendment in the name of the noble Lord, Lord Tyler, because of its wording, I do not take the point about the interim chief executive because the arrangement may be essential in this case. The Speaker will no doubt look to appoint an interim chief executive as soon as possible after commencement to lead the work of setting up the new authority. In fact, we might be accused of being a bit negligent if we were not ready for an interim chief executive so that the body could be up and running.
I propose to accept Amendment 19. Although the Bill could not be misconstrued, it is possible to approach the drafting differently and I thank the noble Lord for proposing the amendment, which would allow that. Noble Lords already know that Amendment 22 has been overtaken by government amendments removing the drafting to which they objected. When we come to it, I am minded to accept Amendment 18A in the next group, which is in the name of the noble Lord, Lord Cope, for the reason that he stated.
I am extremely grateful that the Minister should think of accepting my amendment, but if he accepts Amendment 19 in the name of the noble Lord, Lord Tyler, Amendment 18A is not required. Perhaps I may put it the other way: if the Minister accepts Amendment 18A in my name, he rubs out the whole thing and the amendment in the name of the noble Lord, Lord Tyler, is not required. The Minister needs to give further thought to this. He cannot accept both of them, although he can accept one or the other. They achieve a similar effect.
Which amendment to accept is a choice for Solomon. I am grateful, as always, to the noble Lord for his advice. Let us keep with this group for the time being. I have now spoken to the various amendments.
I am grateful to the Minister for his response. However, I should withdraw Amendment 7 because it is slightly defective in that it refers to the wrong line. I can obviously come back with a corrected amendment on Report or discuss with the Minister whether there is another way to deal with it. I am grateful to him for looking at Amendment 18 in a positive way and I hope that he will come back with another formulation to meet the concern that we have expressed. That would achieve the sort of clarity that we should seek. I do not think that he substantially dealt with the second point on sub-paragraph (2), which states:
"The interim chief executive may incur expenditure and do other things in the name of and on behalf of the IPSA".
It is a pretty messy and open-ended sort of statement to be on the face of a statute of the United Kingdom Parliament. I do not think that it is sufficiently tightly drawn. On that basis, I am happy to withdraw Amendment 7.
Amendment 7 withdrawn.
Amendment 8 not moved.
Clause 1 agreed.
Schedule 1 : Independent Parliamentary Standards Authority
Moved by Lord Shutt of Greetland
9: Schedule 1, page 10, line 10, leave out "four" and insert "seven"
This group of amendments concerns the setting up of IPSA, which is what we had better call it now. Amendment 9 questions whether there will be sufficient people, whether this small group of four plus the chairman is sufficient and suggests that that number is increased. The amendment would increase the number of ordinary members of IPSA from four to seven. Under paragraph (1), at least one person must have held "high judicial office", one must be qualified,
"to be an auditor for the National Audit Office",
and one must have,
"been a member of the House of Commons".
Therefore, there is not much room for anyone else or anyone who might be called ordinary. I do not know whether "ordinary" is a good word, but, bearing in mind that the public seem to have an understandable concern about the subject matter of this Bill, the idea of having someone to represent what is well known as common sense could be helpful. We believe that IPSA is bereft of members, particularly if, under paragraph 12, it should exercise its discretion to form committees and sub-committees. With a membership of only five, the committees will be small and any sub-committees of a committee could end up with one member. That brings me to Amendment 16. If the Government do not agree to increase the number of members, the authority may find itself needing to look outside and to co-opting people to be members of committees and sub-committees.
Amendment 10 would enable a current holder of a high judicial office to be a member. We do not understand why this post on IPSA is to be restricted to former members of the judiciary and we are concerned as to whether there is a large enough pool of qualified applicants.
Amendment 12 addresses the length of time that must have elapsed since an applicant served as an MP as set out in paragraphs 1(4) and (5) of Schedule 1. Paragraph 1(4) states that one of the members of IPSA must be a former MP, to be known as "the Parliamentary member". Paragraph (5) does not prevent another former Member of Parliament from becoming a member of IPSA so long as they have not been an MP within the last five years. Should the parliamentary member be a more recent former MP or should they have been an MP within the five years prior to their appointment? What is the difference between the parliamentary member and any other ex MP who might become a member of the authority?
Amendment 13 is a probing amendment about the phrase "fair and open competition". We agree absolutely that people should be appointed on merit, but will a large enough number of candidates put themselves forward given the requirements of the Bill and the specific points such as one member having to be a former holder of high judicial office, one a former MP and one a qualified auditor? Are we ruling out the possibility that, to use the term, a "head-hunter" may well be required?
Amendment 14 seeks to leave out paragraph 1(10). It states that the IPSA must operate "efficiently and cost-effectively". I would not dare stand up in this place and suggest that the outfit should operate in any other way, but why has it been put in? Is this something we must watch out for in every single piece of legislation from this day forth? If the provision is not in, can a body be profligate? We do not understand why this has been put in the Bill, although it is difficult to say that it should be otherwise. However, it is a strange item to include since I would have thought that an outfit of this nature must in any event operate efficiently and cost-effectively.
Amendment 15 is a further probing amendment to find out why the authority should not borrow money. We are not to know why not. I suppose that if the money has not come through and the authority needs to pay expenses or even the members' salaries, I do not understand why it is specifically denied the business of borrowing money.
The final amendment we have tabled in this group is Amendment 20, which is to ask why IPSA should retain any money that it receives from repayments made by MPs. Why is such money to be retained? Is it to be kept in order to have a party or to be retained on the basis that less will be needed the next time there is a subvention to pay normal expenses? Quite frankly, if money is repaid, I would have thought that it should go back to central government. I beg to move.
I thought that the noble Lord, Lord Shutt, would raise a point I referred to in my speech at Second Reading and which was the subject of comment by the Constitution Committee of this House. Noble Lords may recall that I expressed anxiety about the political balance of the committee. I thought that the noble Lord was going to say that he wanted more members so that there would not be just one former Member of Parliament as the parliamentary member. The anxiety is that if you have only one, it is just possible that he would turn out to hold strong views which represent just one political party, and that might be unfortunate.
There is a case for having at least one other member of IPSA so that it is possible to have perhaps two former Members of Parliament on the committee. As this matter was raised by the Constitution Committee in its report, it should be addressed. As the noble Lord, Lord Shutt of Greetland, has not raised it, I suggest it ought to be considered further. I would like to know the Minister's response on the issue.
I wish to raise two practical points, one of which is a question to the Minister. Paragraph 1(2) of Schedule 1 states:
"At least one of the members of the IPSA must be a person who has held (but no longer holds) high judicial office".
Is it intended that there should be an age limit for members of IPSA? If it is, and if the age limit is 70, you will not be likely to get many judges because they do not have to retire until the age of 70. Therefore the Government might consider whether it should be someone who is holding high judicial office rather than someone who has retired. As the noble Lord, Lord Shutt, said, there might be a very small pool from which to gather the member of high judicial office.
Secondly, in supporting seven instead of five, paragraph 12 on "Committees" states:
"The IPSA may establish any committees which it considers appropriate",
"Any committee ... may establish one or more sub-committees".
"All members of a committee or sub-committee must be members of the IPSA".
If you have got only five, you will not have many sub-committees; you will have a sub-committee of the whole committee.
I echo the point as to age that has just been made by my noble and learned friend Lady Butler-Sloss. But a word of warning: it would not be desirable for someone who holds high judicial office to be on IPSA. We have already referred to the sensitivity of the position of the courts in relation to this legislation, and to have a person who is serving in high judicial office would look rather inappropriate.
I support the point made by the noble and learned Lord, Lord Woolf; it would be quite inappropriate for a serving judge to hold the position. I would hope that if the person appointed held or was entitled to hold high judicial office, they would be endued with a degree of common sense, which is the other requirement the noble Lord had in mind.
After that row of contributions from persons who have held high judicial office, perhaps I may turn the Committee's attention to some more of this ragbag of small but important points that are being negotiated here. Amendment 19A seeks to delete from paragraph 18(2)(b) of Schedule 1 the words,
"(except as mentioned in sub-paragraph (1) above)".
This section of the Bill attempts to separate administrative functions and regulation functions—paragraph 18(1) defines administrative functions and paragraph 18(2) defines regulation functions—so as to distribute them between the IPSA and its staff. The last line of sub-paragraph (1) states that among the administrative functions is,
"the function of maintaining and publishing the register under section 5".
However, I cannot see that IPSA has a duty under Clause 5 to maintain the register, but it does to publish. The clause says that it has to prepare a code and goes into a lot of particulars about how it is to go about that and how the code is to be approved and so on. It also says that the code must require Members to register the information, but it does not say that IPSA has to keep the register. It is fairly obvious that it will keep the register, which is part of its whole purpose, but the drafting might have become a little confused there. It is worth another look.
The next of my amendments in the group, Amendment 19D, relates to funding and how the Speaker's committee has to review its estimate each year. Paragraph 22(4) of Schedule 1 states:
"If it is not satisfied, the Committee must make such modifications as it considers necessary to achieve consistency".
But it does not say consistency with what. Is it consistency with the previous year—accountants do like to ask, "How does that compare with the same period last year?"—or is it consistency with some other bodies or quangos, or is it consistency with something else; for example, Treasury rules? "To achieve consistency" does not seem enough. Perhaps it is internal consistency between different parts of the estimate. It is not clear with what consistency in mind the committee has to propose modifications. In fact, the provision limits the committee to making modifications which achieve consistency with something or other, but not modifications that achieve inconsistency. Perhaps that is all it needs, but the drafting is not very clear.
Amendment 19E raises a very small point. The Bill states that,
"the Committee must consult the Treasury and have regard to any advice given".
I thought that "consider any advice given" might be better, but the difference in meaning is very slight and I would not press it.
Amendment 20A is concerned with what the Commissioner for Parliamentary Investigations will be paid. The Bill says that terms and conditions will be determined by the Speaker. I suggest that the Speaker should not be left entirely untrammelled in this matter, but that we should insert,
"after consulting the Senior Salaries Review Board",
after "determined by the Speaker".
The noble Lord, Lord Cope of Berkeley, referred to the funding paragraph in the schedule, paragraph 22, and criticised sub-paragraph (4), which states:
"If it is not satisfied, the Committee must make such modifications as it considers necessary to achieve consistency".
He asked, "Consistent with what?" I read it as being the previous sub-paragraph, which states:
"The Committee must review the estimate and decide whether it is satisfied that the estimate is consistent with the efficient and cost-effective discharge by the IPSA of its functions".
Perhaps I may add to the fine print of the important points raised in Amendment 9, in relation to the numbers that affect the timing of the appointment of the IPSA. I assume that the target date for the body taking effect is the beginning of the financial year in 2010, which is a relatively short time. If it is not to take effect and take control of the functions in the Bill by the beginning of the financial year 2010, there will be a very unfortunate interregnum. I would like to hear it confirmed, just so that we all know where we are, that the target date for the start of this body is
In terms of considering numbers, I think that we might be a little premature. We are not altogether clear what IPSA's final responsibilities will be. There are many people in the Commons who still believe that by the time this Bill has cleared all its stages, IPSA will be little more than an outsourced fees office for the House of Commons. I think it is highly unlikely that we will want a top-heavy organisation, so perhaps we might consider the question of size a little later in the Bill's proceedings.
There are a number of amendments to deal with in this group. The noble Lord, Lord Kirkwood, asked when IPSA will be set up. The answer is not necessarily particularly helpful, but it will be set up as soon as is practicable after Royal Assent. That does not necessarily mean
I shall be asking the noble Lord, Lord Shutt, to withdraw his amendment in due course but before doing so I shall go through the other amendments in his name and explain my reasons. We have made it clear that these measures apply to the House of Commons only—that is the starting point. Some of the amendments deal with the financing arrangements for the body. We all know that financial matters are really for the Commons and not for this House. The other place is content with these proposals. There was, quite rightly, a good debate on these proposals in this House and in the other place. However, following a number of technical amendments made in the other place, the proposals were agreed without a Division.
On the specific proposals, we believe that to increase the number of members of IPSA, with the consequential amendments that would flow from that, would add to its costs at the same time as the Committee is agreeing to reduce its functions. The public need to be assured that our response to the recent problems is proportionate and efficient, as well as effective. I note what the noble Lord says about the need to ensure that there is always a good number of members present at meetings and the resulting need to have some spare members. A body has to be designed with its functions in mind. This body will have functions in relation to a group of people which is limited in number. The issues it may have to deal with may be complex, and they will certainly be high profile, but they will arise only in relation to that limited group. IPSA will need enough members to enable it to carry out its functions properly, but that consideration must be balanced against the need for it to be responsive. A body as large as eight is likely to become more inefficient and more unwieldy, although I take the noble Baroness's second point about committees and sub-committees.
Amendments 10 and 11 reverse a decision taken by the other place, which decided that the serving holder of high judicial office should not be a member of IPSA but that it wanted someone who had experience at that level. The point made was that a serving member of the judiciary was unlikely to be able to devote the required time to the functions. I want to add to that; I agree with the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern, that it would be a mistake to have a serving judge sitting on IPSA, not just because they are busy people in any event but because in principle it would not be appropriate.
The number of senior judiciary is deliberately limited by legislation, and it was thought that provisions such as this would only increase the demand on senior judiciary. We therefore agreed to amend the Bill to remove the possibility that a serving judge could be a member of IPSA, and we think that that is the right decision. I am happy to tell the noble and learned Baroness, Lady Butler-Sloss, that there is no age limit at all—all retired judges who are interested, please take note.
It is implicit in paragraph 1(5) that the parliamentary member should have recent parliamentary experience. We do not feel that it is necessary to spell this out in paragraph 1(4) as well. We can see why the noble Lord seeks to ensure that the member must have recent experience, but it does not seem wise to limit the provision in that way. There may be occasions when the most suitable candidate has not been a Member of the other place for six years, and we would not wish them to be disqualified just for that; we want to rely on the selection of the most meritorious candidate.
I take the point that the noble Lord opposite made about political bias. One hopes that whoever is chosen will not show any such bias and it is unlikely that they would, but there is no reason why there should not be more than one ex-Member of Parliament on the body; the Bill says that there has to be at least one member who has recently been a Member of the House.
I know that these were probing amendments, but we find it strange that the noble Lord, Lord Shutt, should wish to remove a requirement that the members of IPSA should be appointed on the basis of fair and open competition. It is an important part of the overall scheme that the new IPSA should be both independent and transparent, and that independence and transparency needs to start with the process of appointing its members. The requirement means that any competition for selection as a member of IPSA should not be restricted to a limited ground of candidates, and the selection process itself should be fair.
The noble Lord appeared prepared to see IPSA not acting efficiently and cost-effectively. I am sorry, that is the wrong way of putting it; that would be on the basis that it was not a probing amendment, but of course it is. Rather, he wanted to raise that topic in Committee today, and I shall give him an answer. The requirement, not necessarily in the Bill, would enable IPSA to borrow money, and he asks why we have reached the decisions that we have on this. It is because the provisions are requirements that are found elsewhere for bodies of this kind. It is surely not objectionable that, in carrying out its functions, IPSA must do so with regard to the costs that it will incur and the efficiency with which it will achieve outcomes. Because it will be a small body, however, we do not see any need for it to be able to borrow money.
Lastly, the provision allowing IPSA to retain money it receives and apply it to its functions is also a standard, sensible provision. IPSA may receive repayments of money that has been paid out under the allowance scheme in error. In many cases, that may be dealt with by setting the overpayment off against the next payment due, but that might not always be the case. Instead of requiring that the payments are returned to the Consolidated Fund, the Bill provides that IPSA can keep the payments and use them to pay out allowances to other Members of Parliament.
On the amendments of the noble Lord, Lord Cope of Berkeley, I have come to a view about Amendment 18A, about which I spoke a little prematurely following his lead in the previous group. I prefer Amendment 19, so if the noble Lord would be kind enough to withdraw his amendment in due course, I would be grateful.
I return to the Minister's point, which he made off the cuff, understandably, and without looking at his text. He said that in his recollection the schedule says that at least one of the members of IPSA must be a person who has been but is no longer a Member of the House of Commons, it actually says "one of the members". I suppose that it is intended to make a distinction with the preceding sub-paragraphs, which say that "at least" one of the members must be a person who has held high judicial office, and that "at least" one of the members must be a person who is qualified under Schedule 3, and so on. A distinction seems to be intended there, and the Minister might like to look at that and clear it up when convenient.
This may, again, be a matter of drafting. I have just been advised that it does mean a minimum of one of the members, so the phrase "at least"—which appears, as the noble and learned Lord rightly points out, in the subsection—should really apply to subsection (4) as well. I am grateful to the noble and learned Lord for having pointed that out.
It might be convenient if I mention one more matter at this stage; I recognise that this is not necessarily a conventional way of doing so, because it is a rather general point. The Minister emphasised in what he said that cost is a consideration which should be taken into account with regard to IPSA. We were also talking earlier about having two commissioners in this field in the other place. If the matter is being looked at again, I urge the Minister to take back for consideration, now that the Bill has been slimmed down, the idea that there might be considerable advantages in not having two commissioners, for the good reason that the existing commissioner has been the subject of a decision of the Court of Appeal—which I confess was presided over by myself—to the effect that he is not subject to judicial review in exercising his functions. I apprehend from what has been said in this Committee that that would be looked at with favour.
Another reason is that, from the limited experience I had when I was chairman of the subcommittee in this House dealing with Lords' interests, the person in the position of the commissioner will, over time, develop expertise as a result of exercising his office. There will always be a subjective quality to that in these matters. The one thing that I would have thought that the other place would not want is the two commissioners that they have created coming to different decisions in this area.
There may be a very good reason of which I am simply unaware why it was felt necessary to have two commissioners. However, it seems to somebody wishing to take forward the idea of efficient, effective and economic operation of this new body, and when one looks at a Bill which is now so different from what it was, that something is being created that might be over-egging the pudding, creating an undesirable complication with conflicts of jurisdiction over the same issues.
I am, as always, very grateful to the noble and learned Lord for his observations. Obviously they have been heard not just by me but by my noble friend the Leader of the House. I will take away the noble and learned Lord's suggestion and comments and come back in due course with an answer for him.
Would the Minister give way on another point? It may be regarded as the sort of wild contingency that would appeal to AP Herbert. It may also be the case that those in your Lordships' House today who have held high judicial office would say that it was impossible for any of them ever to have previously been a Member of Parliament. However, it seems possible that somebody could satisfy both sub-paragraphs (2) and (4) of paragraph 1. In those circumstances, would that one person be sufficient to fulfil both obligations?
The noble Lord has got the better of me: I have no clue as to the answer to his question, but I think that I know people who could find out for me. I am grateful to the noble Lord.
I return to attempting to deal with the amendments tabled by the noble Lord, Lord Cope of Berkeley. On Amendment 19A, we understand the desire of the noble Lord and the Committee not to have superfluous wording in Acts of Parliament. However, we do not think that these words are superfluous. It is important to make it clear that there is no contradiction between the provisions of paragraph 18(1), which sets out the administrative functions of IPSA in relation to the Register of Members' Interests, and the provisions of paragraph 18(2), which sets out the regulatory functions in relation to the code as a whole. It is helpful to make clear the distinction by including the words that the noble Lord objects to. On that basis, I ask him to consider not pressing that amendment.
As far as Amendment 19D is concerned, I think that my noble friend Lord Borrie dealt with the point about consistency, so I will rely on his argument for that.
I have listened with great care and am full of admiration for the Minister, who is answering, and the noble Lords who have asked these questions. I wonder whether the aim of Amendment 19D to paragraph 22(4) could be achieved with the words "considers necessary to achieve such consistency". Then it would clearly refer back to the previous sub-paragraph. I think that that is what the Bill is supposed to mean.
I am very grateful to the noble Lord. We will take that away and consider that possible minor, but helpful, amendment.
Amendment 19E would, if accepted, weaken the regard that the Speaker's Committee should have to the advice of the Treasury in finalising the estimate. The committee is not required to accept the advice in any event. It can reject it but must prepare a statement of reasons if it does so. I point out that the wording of this part of the schedule mirrors that which applies to the Electoral Commission. I remind the noble Lord, Lord Cope, that the other place considered these provisions; there was an extended debate on Schedule 1. The amendments also deal with the funding of a public body and with an estimate that will be a parliamentary estimate, not a departmental estimate. Without for a moment suggesting that it is not for this Committee today to debate these matters, I think that this is one of those matters that are—it could be argued—pre-eminently House of Commons business.
Finally, Amendment 20A would require the Speaker to consult the Senior Salaries Review Body in setting the terms and conditions of the independent commissioner. There is no proposal for a similar amendment to the identical provision in relation to the members of IPSA. We are not convinced that the Speaker should consult the Senior Salaries Review Body. It has nothing to do with the work of the independent commissioner. We think that the Speaker is perfectly capable of taking advice about other comparable positions without specifying it in the Bill, so we do not see the case for making a specific reference to the SSRB in this case. Clearly, terms and conditions of employment go well beyond salaries.
I am grateful to the Minister for his response to the amendments standing in my name and that of the noble Baroness, Lady Hamwee. The Minister's fundamental point concerned the expense of increasing the body's membership by three people. I would not have thought that we were talking about serious money in that regard, particularly bearing in mind the importance of the issue.
I listened to the exchanges that took place on former MPs. It strikes me that all five of these people could be former MPs. I see no reference to qualifications that the chairman may or may not hold. Certainly, some former MPs have held high judicial office and I am sure that some former MPs have been auditors. All of them could be former MPs. That is slightly worrying in the sense that MPs are saying that they want to distance themselves from this process. I have difficulty with the issue of the sovereignty of Parliament, but they are saying that they want to distance themselves from these matters and put them in the hands of other people. I am not convinced that the public would consider that the body was sufficiently distanced from the process if all its members were former MPs. The Minister may care to think about that a little more. Nevertheless, on the basis of the answer that I have received today, I beg leave to withdraw the amendment.
Amendment 9 withdrawn.
Amendments 10 to 18A not moved.
Moved by Lord Tyler
19: Schedule 1, page 13, line 36, leave out "ensure that" and insert "comply with sub-paragraph (2)"
Amendment 19 agreed.
Amendment 19A not moved.
Moved by Lord Bach
19B: Schedule 1, page 14, line 10, leave out "6(6)" and insert "6(5)(b), (5B)(c), (6) and (7)"
This group of amendments deals with the changes to the investigation and enforcement regime that the Government have brought forward. During the passage of the Bill, there has been considerable concern about the impact of its provisions on parliamentary privilege, particularly each House's right to freedom of speech and exclusive cognisance of its own affairs. As has been said, the events disclosed by the Daily Telegraph in relation to the other place have made it impossible to continue with the old system of self-regulation. The public will clearly no longer tolerate a regime where the other place sets, administers and investigates breaches of its own allowances and the rules on the registration of financial interests. I think that that is also the view of this Committee. Those powers do not deal with matters that are presently privileged.
We have always recognised, however, that it is a different question in relation to enforcement. The Bill as originally drafted took a particular approach in trying to steer the narrow line between enabling the commissioner and IPSA to do their work and not infringing privilege. That approach did not find favour in the other place and your Lordships remain concerned about how it is handled in the Bill, as it was sent up here by the other place. We remain of the view that many of the concerns expressed, particularly about the extent to which the courts would decide that they now had the right or duty to inquire into matters that would previously have been regarded as privileged, were to an extent exaggerated, but we recognise that those concerns are real.
The package of measures in the government amendments in this group—although there are also opposition amendments in the group, to which I shall reply after they have been spoken to—responds to those concerns by removing any role for IPSA in the enforcement of the new allowances regime or the code of conduct on financial interests in individual cases. IPSA will remain responsible for setting the allowances regime and for the payment of MPs' salaries and allowances. It will be responsible for setting the code of conduct on financial interests and for administering the register of financial interests. IPSA will retain responsibility for the procedures under which alleged breaches of the financial rules can be investigated. Those, we think, are the core principles of independent oversight and regulation of MPs' financial affairs which the public ask for and which we have promised.
An independent statutory commissioner will also be responsible for investigating complaints that MPs have breached the rules of the allowances regime or the rules on registration of interests. Those arrangements remain unchanged. The amendments make changes in what happens to the outcome of the commissioner's investigations. Amendment 43A provides that the commissioner must refer his or her findings to the Committee on Standards and Privileges, rather than to IPSA. The amendment redrafts what was inserted in the other place as subsection (5), but maintains its effect in allowing minor cases to be settled by the commissioner without reference to the committee, provided that any general conditions fixed by IPSA are met and the Member acknowledges the error and agrees to repay the overpayment or correct the entry in the register, as appropriate.
New subsection (5C) is a revised approach to the duty of the MP to provide information to the commissioner, which was included in subsection (3) of Clause 6 and for which the sanctions were previously covered in subsections (5) and (6) of Clause 7. Rather than setting out the duty on the MP to provide information, the commissioner will be able to report a finding to the Committee on Standards and Privileges if the Member of Parliament chooses not to co-operate.
The other change to which I wish to draw the Committee's attention are the additions to the requirement for the procedures that IPSA must draw up. Following concerns expressed by the noble Lord, Lord Lester of Herne Hill, and other noble Lords, we propose including a specific right for Members of Parliament who are subject to an investigation to be heard in person by the commissioner, as well to make representations, and a right, in appropriate circumstances, to call and examine witnesses.
I have not gone through in detail the individual impact of each element of this group of government amendments. I hope that what I have said will find favour with the Committee. Most of the amendments that I have not referred to are consequential on the main government amendments in the group. I beg to move.
I will speak to the amendments in this very large group that are in my name and those of my noble friends. The government amendments to Clause 6 in this group make a considerable improvement to the clause and we therefore support them. It was wrong that IPSA, the body that makes the code, should also have been responsible for its enforcement, and having IPSA intervening between the commissioner and the Committee on Standards and Privileges could have caused serious delays and additional expense. Therefore, we welcome Amendment 19B and the others tabled by the Government. In referring to "the commissioner", I am of course referring to the Commissioner for Parliamentary Investigations and not the commissioner for the commissioning of parliamentary commissions, or any other commissioner who might be floating around.
Amendment 33 to Clause 4, in the names of my noble friends Lord Shutt and Baroness Hamwee, provides that IPSA must review its determinations that a claim should be wholly or partly refused. The amendment states that IPSA must decide on the process for reviewing its determination and should submit the process that it has decided on to the Speaker's Committee. It is desirable that the process should be given the widest possible circulation and it would be appropriate to do that by the method suggested.
Amendment 43 proposes that IPSA should give guidance to Members on the records that they should keep. Again, that is a sensible course, which would be of assistance to Members.
Amendments 43B and 43D are probing amendments. Government amendment 43A provides, in proposed subsections (5)(b) and (5B)(c) to Clause 6, that conditions should be specified by IPSA. It is not clear what these conditions are and how and when they are to be imposed. I imagine that they are not to be part of the code itself. Are they a new free-standing power? If so, how is that power to be exercised? Are the conditions to be of general application or could they be imposed for a single investigation? The most reasonable formula is to require any condition imposed under the new government amendments to be made as part of the procedures under existing Clause 6(6). In this case, it should be made clear that the conditions are made as part of the procedure that will be determined by IPSA under that subsection. If that is not the basis for imposing the conditions, a new power is being given to IPSA and the basis and limitation of that power must be explained.
Amendment 48 has been overtaken by the government amendments, which we will support. There remains the problem that there is no provision either in the Bill or in the government amendments for what should happen if the investigation clears the Member who is its subject of any misconduct. Will this not be referred to the Committee on Standards and Privileges or does it have to be referred to the committee for information? That should be covered in the Bill, but it is not.
I turn to Amendments 50, 51 and 52. Clause 8(6) refers to investigations. It states:
"The procedures must, in particular, provide a member who is the subject of an investigation or complaint with an opportunity—
(a) to make representations to the Commissioner about the investigation or complaint;
(b) to make representations to the IPSA".
The complaint is relevant only as one of the possible triggers for investigation under Clause 6(2)(d). Is it intended that, where the complaint is made by an individual under Clause 6(2)(d) but not in other circumstances, Members will be able to make representations to the commissioner that no investigation should be started and will then be able to make representations again when the investigations are carried out? That is not in itself unreasonable but, if so, why not allow pre-investigation representations in cases triggered by Clause 6(2)(a), which concerns investigations on the commissioner's initiative, or those triggered by subsection (2)(c) concerning investigations at the request of IPSA? On the other hand, should it be left for the commissioner to decide whether to proceed without the Member who is proposed for investigation necessarily having a right to make representations at that stage?
Finally, we welcome the exclusion of Clause 7 from the Bill. We think that that is an important step forward. Consequently, the Committee will no doubt be glad to hear that I shall not speak to Amendments 54, 55, 57, 64, 65, 68 or 69, which are tabled in my name, although my noble friend Lord Tyler will speak to Amendment 75.
It may be appropriate for me to follow the noble Lord, Lord Goodhart, although—and in this there is no sense of criticism of him—I shall be somewhat shorter. I simply want to talk about what was nearly his penultimate point concerning the reference in government Amendment 43A to "such other conditions".
I was struck that at this stage it is impossible for the commissioner or IPSA to define all the circumstances in which they will find themselves becoming involved. Any reader of the Daily Telegraph would have recognised that there was an almost infinite variety of circumstances in which they might find themselves involved. Therefore, I do not think that it is unreasonable that in this clause the commissioner may have regard to,
"such other conditions as may be specified by the IPSA".
That is referred to in proposed new subsection (5)(b) in Amendment 43A and, similarly, in relation to financial interests, proposed new subsection (5B)(c). However, it seems important that these provisions should not be absolutely at large. Therefore, I suggest that it would be an improvement if the word "reasonable" were added before the word "conditions" in both places, so as to read "such reasonable conditions". The insertion of that word would simply act as a signal that, if the commissioner and IPSA found themselves with a case which might arouse strong emotions because people had behaved very badly, they should not be allowed to introduce vindictive conditions but, rather, reasonable conditions.
Going back to what I said earlier in the debate on Amendment 1, which the noble Baroness the Leader of the House was so readily willing to look at again, if we establish that none of these activities is justiciable, then it will not be for a court to decide whether something is reasonable. Of course, if a court were looking at the case, it would have to take that into account. If, in the end, the noble Baroness does not accept my amendments which were grouped with my noble friend's Amendment 1, then it is conceivable that this could be justiciable, in which case the word "reasonable" would be an indication to the court that it would have to apply some judgment as to whether the conditions were or were not reasonable. I hope that we will not reach that position and that we will be able to get to the point where the court is not involved with any of these matters—a view held, I think, by a large number of noble Lords in all parts of the House. However, we have not got there yet, and I hope that the Government will be able to accept the insertion of the word "reasonable".
In order to try to make Amendment 43A and Clause 6 work, I have one question for the Minister and some concern about what remains of Clause 6. As the commissioner will be referring his findings to the House of Commons Committee on Standards and Privileges, am I right in thinking that it will then be a matter for that committee, with complete freedom, to make such decisions as it thinks appropriate to deal with a referral from the commissioner? This lies uncomfortably with a considerable part of Clause 6, because Clause 6 seems to do two separate things: one is that the commissioner investigates and the other that IPSA takes a role. I get the impression that Amendment 43A is taking over. If I am right, then you would not require the commissioner to report to IPSA under subsection (4) and I would assume that subsections (7) and (8) would be irrelevant because those are the jobs of IPSA and not of the commissioner. It looks to me as though most of Clause 6 should come out and that the duties of the commissioner should take over largely from the duties of IPSA.
Perhaps the noble Lord on the Front Bench can help me. Unlike some other noble Lords, I am somewhat clueless, a word frequently used by the Front Bench opposite. Could they please explain to me what happens if IPSA makes a finding, an MP is reported to the Committee on Standards and Privileges in the House of Commons and he says, "I didn't do it, guv"? That committee would then have to make a judgment and it may or may not overturn what IPSA has done so, bingo, out of the window goes a totally independent body. Is that right?
I have two amendments in this group. Amendment 48B suggests that the Speaker of the House of Commons should be consulted when IPSA determines the procedures. He is to be consulted when the code is fixed and he is to be consulted on various other matters throughout the Bill but he is not to be consulted about the procedures. I think he should be, not merely the Leader of the House and the others mentioned.
I shall not pretend that I have absolutely mastered all the amendments that the Government are making to the Bill but I think that Amendment 74A has become a consequential amendment, at least in part, to some of the amendments which the Government are making. At present, the wording says that nothing should prevent the House of Commons exercising any of its disciplinary powers, otherwise than following an investigation. We do not want its disciplinary powers to be limited following an investigation either, so why not knock out the words from "otherwise" onwards? That would make the drafting a shade clearer. Those who drafted this Bill have done a fantastic job in the time available but the drafting is not of a quality which we normally expect from parliamentary counsel. I am sure that is because of the timeframe. Some of it is obscure, as I have tried to show, and I think we have made some improvements not only to the policy but also to the drafting.
Perhaps the Minister could clarify one small point which is simple compared with all the other problems he has been given this afternoon. On about three occasions, he mentioned the enforcement powers. "Enforcement" is a very strong word which I do not like because it has the sniff of the jackboot about it. I once received a letter at home from Norfolk County Council which on one side said "Norfolk County Council" and in a jazzy way, "working for the people of Norfolk", and on the other side it said, "Rural Enforcement Agency". One title is nice and democratic and the other is dictatorial and unpleasant. Who will enforce what on whom? I can only assume that it is Members of Parliament, those people who have been elected to the House of Commons, which always used to be regarded as the highest place in the country. Now they are having something enforced on them. What is to be enforced on them, who will do the enforcement and how?
My noble friend Lord Goodhart and I tabled Amendment 75, not being quite aware at that stage whether the Leader of the House was to move the inclusion or exclusion of Clause 7. It is only right that we should look at this issue, even if only for complete clarity at this stage. I remind the Committee that this deals with the enforcement section of the Bill, Clause 7(11), which refers to a Member of the House being expelled. It is important for us to put down a marker on yet another issue about the great relationships of our parliamentary system. A good deal of the debate so far has been concerned with the relationship between the House of Commons and the new parliamentary standards authority. Amendment 75 is about reasserting the relationship between Parliament and the authority on the one hand and the public on the other. The amendment says in a new subsection following subsection 11:
"The expulsion of a member from the House of Commons in exercise of the powers of the House under subsection (6) shall not prevent the member from standing for re-election".
In parenthesis, perhaps I should say that I have subjected myself to the will of the electorate on rather a lot of occasions and have been successful on only six. I am sure that others in the Committee can beat that record. I have even been unsuccessful in a by-election, so I suppose I should declare that interest. It was the Beaconsfield by-election in 1982 when the Labour candidate was even less successful; a certain Mr Anthony Charles Lynton Blair. That is by the way.
The point about this amendment is that surely we should re-establish the principle that the final judge should be the electorate. We should not forget that. Therefore, we believe that it is extremely important to realise that there will be a subjective judgment, whether by the committee or even by the whole House, on the advice of IPSA, to take away the livelihood of a Member of Parliament but, more importantly, potentially to take away from the electorate the right to decide who their representative is to be. That is a subjective judgment and all judgments are subjective. What if the electors in that constituency disagree? It may be very unlikely but it is possible. Surely we must ensure in the Bill that we do not prevent a popular but censured Member of Parliament from re-standing in any by-election. There has rightly been a great deal of discussion about parliamentary privilege but that is always subject to the will of the people in a parliamentary democracy, the right of the public, as is their privilege, to elect whomsoever they like to represent them in Parliament.
I suppose our amendment is a probing amendment but it is important to re-establish the principle that in the end it is the electors who decide, not some scrutiny panel set up by the political parties which can turn into a kangaroo court or a star chamber. Neither of those gives us confidence in the way in which these things should be handled, particularly if they are peopled by the Whips, the hierarchy of the party, who may find some individual MPs rather less convenient than others. There are apparently some 30 Conservative seats now up for grabs and so rapid have been recent decisions and announcements of retirements that the selection rules have been suspended for the time being to allow other considerations to take their place. At the very least, it would be appropriate to ensure that, if this clause remains, we put something into the Bill to show that, in the end, it is not the decision of the party hierarchies which is critical but that of the electorate.
It is particularly unfortunate that the impression has been given that well established parliamentarians, who, perhaps, have a reputation for independence—even unconventional and inconvenient independence—have been those who have been asked to go, while others who are more subservient remain. That is why it is important, if the clause remains, that we establish the final authority of the people, the electorate. It surely must be right that the opportunity to walk away is, yes, voluntary, but when people are forced to walk away—even with a golden handshake and a resettlement package at the end of the Parliament—that they do so in terms acceptable to the electorate.
We do not know that yet. I am a comparative novice in this House; I have been here only some four years, but until the clause is removed from the Bill, it stands and therefore, as I understand it, all the amendments are in order. If I am corrected in a moment, obviously, I will understand.
All we seek to do in the amendment is to establish the principle that, at the end of the day, it is not the parties who should be in the position to enforce, it should be the people. If, as was indicated by all three party leaders in recent weeks, some form of report procedure should be established, that would have been a different matter. Without that, we think that it is wrong that the decisions should be taken behind closed doors. They should be taken in the open by the people they affect: the electors in the constituencies concerned. Hence the need, as we saw it, when we first saw the clause, for Amendment 75.
As it appears that my noble friend is winding up, perhaps I may comment briefly. The amendments are certainly to be welcomed, as they deal with the concern expressed about the role of IPSA in these matters, with regard to both the question of parliamentary privilege and whether it might affect criminal or civil charges. The noble Baroness the Leader of the House anticipated the amendments in her letter. They are certainly an improvement. Having said that, I share the concern expressed by other noble Lords about new subsection (5)(b), that IPSA will somehow, although it is said not to be involved in individual cases but only with procedures, be able to set certain other conditions which will or may have to be taken into account by the commissioner.
I think not. I am speaking to Amendment 43A. Perhaps the noble Lord will look at new subsection (5)(b) in the amendment, which states that IPSA can go on imposing various conditions. Although it is said that it will not be involved in individual cases, it will be involved in setting the structure which will, in turn, have to be taken into account in individual cases. That appears in the amendment. It is true that it may have appeared in the original clause, but I was referring to the provision in the amendment, not in the original clause. The noble Lord's intervention is slightly off the point, if I may say so.
I am concerned that we will still find that IPSA is fulfilling a role in that context, and we have no idea what those conditions may be. Why we should leave it to IPSA to determine those conditions, rather than include them in the Bill, I am not at all clear. I am worried that subsection (5)(b) in the amendment brings IPSA back into a role that we may prefer it not to have.
In Amendment 43A, under new subsection (5B), which deals with registration, the commissioner has to take a decision whether he regards the failure to register an interest,
"was minor or that the failure was inadvertent".
From my recollection of what happens in the House of Commons, is there not a danger in that that the commissioner, who has received a complaint from a member of the public about a failure to register, may decide that, in his or her view, it was minor or inadvertent? That may not satisfy the person who has complained and may well be taking a decision that the Committee on Standards and Privileges would not approve of if it had known that it had been taken. As I understand that subsection, the commissioner is not required to inform the committee of his decision that it is minor or inadvertent.
Rather subtle points arise about the practice that the commissioner will adopt in deciding whether matters are minor or inadvertent. That requires subjective judgments, and I foresee circumstances in which the Committee on Standards and Privileges may simply say that it would not have agreed, had it known.
I want to ask about the relative position of the code of conduct and the financial rules. I understand—although I am subject to correction—that the commissioner is concerned only with the financial rules, not with the code of conduct. The code of conduct is dealt with by the existing parliamentary commissioner. Amendment 43A refers in new subsection (5A) to,
"a requirement included in the code by virtue of section 5(7)".
It is not included in the code; it is included in the rules, so some confusion is apt to arise if those are not kept distinct.
Those last two or three interventions were extremely useful, especially that of my noble and learned friend Lord Mackay of Clashfern. They demonstrate that this substantial group of government amendments needs further probing. We will want to examine them in more detail, given that they have been in the public domain for only 24 hours or so.
Of course, we will support the government amendments, because the issue that the Minister is trying to resolve was raised in another place by my right honourable friend Mr Grieve. He rightly identified the impossibility of having the authority publicly recommend penalties to the Committee on Standards and Privileges. He suggested that the Committee on Standards and Privileges should retain the role it currently has of assessing evidence and giving judgment on the behaviour of Members of Parliament. As I understand it, in the amendments, the Government have conceded the point and tabled amendments that, in their words, replicate the current position. That is certainly a great improvement on the impossible provision introduced to this House originally, so we will accept the amendments and not oppose their inclusion in the Bill.
This is a complicated and substantial group of amendments that covers several clauses and has pre-empted many perfectly sensible amendments tabled by my noble friends and other noble Lords. It has raised many concerns that need proper examination; for instance, the rights of Members of Parliament to make representations and the fairness of the trial. No doubt, we shall come back to some of these issues when they are addressed later in the Committee, but I feel that some will have to be returned to on Report next week if this House is to give this legislation at least a vestige of the scrutiny that it so desperately needs.
I do not envy the Minister the job of replying to the concerns that have been raised. We shall read very carefully what he has said and study these amendments before Report.
Amendment 75 is a probing amendment that deals with the rights of a Member of Parliament. It was spoken to by the noble Lord, Lord Tyler. There is no way in which IPSA can get rid of a Member of Parliament. The noble Lord is right that only the electors can do so. The other place can expel a Member, but IPSA is not in a position to do so. The House retains all the power to sanction an MP. If it expels an MP or censures him in some way, it is its business through its committee and eventually on the Floor of the House. I understand that any MP who is expelled is entitled to stand again in a general election or a by-election. Nothing in the Bill affects that.
It may be of assistance if I explain what government Amendment 43A, which is perhaps the major amendment in this group, does. It sets up a new regime and provides that the commissioner, after conducting an investigation, may do one of three things. If the complaint relates to the allowances scheme, he may, if the Member of Parliament has accepted the findings and has agreed to repay any money owing, not refer the matter to the committee but settle it. If the complaint relates to the code of financial interests, the Member has accepted the findings and the interest is minor or the infringement inadvertent and the MP takes the necessary steps to rectify the situation, the commissioner does not need to refer findings to the committee but can settle the matter. IPSA can impose conditions about which cases are suitable to be dealt with in this way, but in any other case the commissioner must make a report of findings to the Standards and Privileges Committee. The commissioner may also make a report to the committee if the Member of Parliament has not provided information that the commissioner reasonably requires for the purposes of the investigation.
We are giving the commissioner power not to make a report about the Member's case to the committee in very minor and inadvertent cases. It is therefore possible that the committee will never hear of those cases.
I am sorry to press my noble friend on that, but I am going back to the period that I spent on the committee. I cannot see how it is possible for the commissioner to decide whether something is minor or inadvertent. It is not as clear-cut as that. I foresee problems within the committee and objections from Members.
I am beginning to think that it may be necessary for me to ask the Committee's permission to take Amendment 43A back to reconsider. I make no apologies for doing that because of the important matters that have been raised during the debate on this group. I am more than happy to do that. Amendment 43A will not be put during Committee stage. I hope that that is helpful to the Committee.
I would prefer the Government to put Amendment 43A into the Bill while saying that they will consider the various points that have been raised and may produce amendments in response to them later. Then the Bill would read when reprinted and we will have a much better idea of it. At the moment, the difficulty is that we cannot read what the Bill will look like on one piece of paper. That makes it very difficult to unravel all these issues. I think that it would be better if the Minister put the amendment in the Bill, even if he is going to fiddle about with it later.
I entirely agree with what my noble friend said and I welcome the Minister's response. However, he said that the information might never get to the Standards and Privileges Committee. Am I wrong in thinking that the general public may have access to that information under the legislation? Indeed, that is the origin of the whole present upheaval in Parliament. Is it not a fairly bizarre situation that someone may ask for the information and get it, but the committee of the House will not have it?
I take the noble Lord's point. It is the same point that my noble friend was making. That is one of the matters that we will consider with gratitude to the Committee for raising it.
I was asked what would happen if the commissioner referred a finding and it was overturned by the Standards and Privileges Committee. The committee retains the discretion to do whatever it likes with a referral from the commissioner. I do not think that anyone who has been a Member of the other place would expect it to do anything else. That does not undermine the independence of IPSA, which will set the allowances, if the Bill goes through. There will still be an independent body investigating and the findings can be made public. The IPSA scheme will be open to freedom of information.
Is the commissioner's report not simply the facts? It would be unprecedented for the committee to want to overturn the decision. If the commissioner was expressing a view, it would be a different matter.
It is about facts but, so that parliamentary privilege is absolutely certain, as we understand it, the committee is entitled to overrule what the commissioner has found. That is going one step further than many might require. IPSA, not the commissioner, will set the procedure for investigation, so there can be no allegation that the commissioner is both judge and jury.
I was asked why we need additional conditions to be specified by IPSA when a finding of a minor infringement of the rules is not referred to the Committee on Standards and Privileges. These additional conditions permit IPSA to specify additional matters before the commissioner refers a finding to IPSA. IPSA may, for example, wish to specify a threshold for the amount to be repaid and to avoid referring de minimis breaches or breaches where it was subsequently apparent that the rules or guidance were unclear.
On Amendment 52, the noble Lord, Lord Goodhart, may be suggesting that, by the time the Member of Parliament makes representations, any complaint has already turned into an investigation. However, this might not be the case. The commissioner may receive a complaint and want to ask the MP informally what he wants to say in response. Depending on what the Member of Parliament says, the commissioner may proceed to a full investigation. It is therefore important to have procedures that make it clear that the MP's rights to respond to a complaint apply before, as well as after, it becomes a full-scale investigation. That is what the Bill seeks to say.
If the Bill does not allow for that, we must look at it after Committee. It is certainly our intention that the Member of Parliament should have that right.
I was asked why the Bill did not allow pre-investigation representations by Members of Parliament. That would add an additional layer of bureaucracy. The Bill provides that MPs can make representations throughout the investigation, although the noble Lord thinks that the Bill is not as clear about that as it should be. If the commissioner is satisfied that the complaint is unfounded—we have had this debate before—he may decide not to refer a report to the committee. That concerns my noble friend Lord Campbell-Savours and other Peers, too. However, I need to make it clear that this is only on the proviso that the MP agrees with the conclusion, not in any other circumstance.
The noble Lords, Lord Goodhart and Lord Jenkin of Roding, both seek through their amendments to amend the requirement that IPSA may specify the conditions under which the commissioner might be able to resolve a matter without referring it to the Committee on Standards and Privileges. As we see it, the noble Lord, Lord Goodhart, would like to see the provision removed; the noble Lord, Lord Jenkin, wants to qualify it.
On the point made by the noble Lord, Lord Jenkin, the conditions that are specified must be reasonable. IPSA will be a public authority and will be subject to the normal public law principles of rationality. Exactly what conditions may be imposed on informal settlements will be a matter for an independent authority. They might include a maximum amount of overpayment that can be dealt with without reference to the Committee on Standards and Privileges or a condition relating to a number of different findings on the same Member of Parliament.
I take the noble Lord's point. If I have dealt with him too literally, perhaps he will understand why. It is important that the commissioner, the Member of Parliament and members of the public know the conditions in which it might be possible to settle the matter without referring it to the committee. This is there not to provide extra hoops for Members of Parliament to go through but to attempt to be open about the fairness of the procedures.
I am grateful for the Minister's explanation, but I am afraid that I totally misunderstood what this is about. Could there be some clarification at a later stage, along the lines of the Minister's explanation, of the meaning of the paragraphs that refer to such other conditions? I had assumed that they meant the conditions relating to a particular case, but they appear not to mean that at all. The conditions are set generally by IPSA as part of the provision for settling the case without referral to the committee.
What the noble Lord asks for is utterly reasonable and I will ensure that a letter is written that clarifies our response to his question on this part of the Bill. That letter will be sent to the noble Lord and a copy placed in the Library of the House.
There has to be some discretion. Not every condition can be in the Bill. Perhaps the noble Lord will be patient enough to wait for the letter to drop through his letterbox.
We have debated this group of amendments for a long time. They arise from government amendments that find general support from around the Committee. The Government have responded to widely held opinion both in the other place and here. The amendments may not be perfect, but the Committee stage gives us the chance to see how we can make them better.
Amendment 19B agreed.
Moved by Lord Bach
19C: Schedule 1, page 14, line 11, leave out paragraph (d)
Amendment 19C agreed.
Amendments 19D to 20 not moved.
Schedule 1, as amended, agreed.
Schedule 2 : Commissioner for Parliamentary Investigations
Amendments 20A and 20B not moved.
Schedule 2 agreed.
Schedule 3 agreed.
We have not got to that amendment yet. We would like to get there soon, but I am not sure that we will.
Clause 2 : MPs' salaries
Moved by Lord Lyell of Markyate
21: Clause 2, page 1, line 17, at end insert—
"( ) In fixing the salaries of members of the House of Commons, the House shall, so far as practicable, provide for a salary, taxable according to the normal laws of taxation, and set, after consultation with the persons and bodies listed in section 3(4), at a fair level to include the reasonable needs of members to maintain homes near Westminster and in or near their constituencies."
I will try not to detain your Lordships for too long. In speaking to Amendment 21, I shall speak also to Amendment 26. These amendments are important for practical reasons and for clarification of the interlinking between Clause 2, which provides for salaries for Members of Parliament, and Clause 3, which provides for their allowances. I believe that they are of constitutional significance in that the whole system of allowances for MPs, as we all know only too well, has brought the other place into disrepute, which is deeply worrying for all of us, particularly for many of us in this House who spent many years there.
At the heart of this problem is the way in which salaries and allowances have been mixed for Members of Parliament for more than 30 to 40 years. The remuneration—in ordinary terms, the pay—of Members of Parliament has been a mixture of a salary and a very broadly based allowance. It started in July 1974 when, at a time of high inflation, Harold Wilson, with the Government between the two elections, was faced with a serious revolt by Labour MPs who were in deep trouble. The average take-home pay was about two hundred and something pounds a month. They were having real difficulties in making ends meet. They had to live in London but did not have living away from home allowances or anything else. MPs were going to revolt against an incomes policy which the Government wanted to introduce for everyone else.
It was got around by the device—you could almost say the fudge—which every party has taken up since, of giving a £500 a year allowance to all Members of Parliament. That was equivalent to about 25 per cent of their actual salary or 20 per cent of their total remuneration. That has been going on ever since. It went on for all 22 years that I was in Parliament. It almost came entirely under the heading of the second homes allowance. You could choose which home would be your second home. I chose the home where I brought up my family in Hertfordshire and I lived frugally in London. I believe that many parliamentary colleagues did much the same, although some had small places in their constituency and kept their families in London.
It is important to understand that it was, and up to a point very much still is, an essential part of the overall pay and remuneration of a Member of Parliament. Today, where an MP earns £64,000 of salary and has a living away from home allowance, if it can be justified under the present rather complicated rules, of £24,000, when the tax is taken off the £64,000, approximately one-third of the whole pay of a Member of Parliament comes under this shadowy heading of allowance.
I recognise that there are objections to this House telling the House of Commons what to do, but this House has a real responsibility for the constitutional effect and good clarification of this legislation. Clauses 21 and 22 require the House of Commons to do away with the current additional costs allowance in respect of second homes and to provide for a salary that would be taxed in the normal way as for all other taxpayers, which amounts to what the Senior Salaries Review Body considers to be a fair level. It should take into account the needs of a Member of Parliament to maintain homes near Westminster and in or near his or her constituency.
Put very simply, the aim is to treat Members of Parliament as nearly as possible like all other citizens.
I think that it probably does. During the years when I was in Parliament, there was perceived to be a lot of unfairness to London, Members who did not get the second homes allowance which was so valuable. They got a much smaller allowance. Parliament could consider going back to that sort of idea. I do not really want to get into that kind of detail. I am trying to get away from what I believe was the device of using allowances which ought to have been pay, and which was pay. A Member of Parliament got just pay until July 1974. Since then, we have expanded this device of allowances and the time has come to do away with it.
Ordinary citizens talk to us and we discuss this issue. They really dislike seeing people have a £7,000 kitchen or something like that put into their house in order to get an allowance. Almost more damagingly—although it is perhaps the only respectable way of getting this allowance—seems to be to have a colossal mortgage of £250,000 or sometimes £350,000 on which the interest is paid. This leads to a lot of the fudges and the flipping and to all sorts of things of which one does not approve, some of which amount to wrongdoing. But we should not put Members in that position. It is relevant for us to consider this because the Bill seems to set in stone the obligation to do that.
Under Clause 2, the obligation is for the House of Commons to make resolutions on its salaries. However, the clause says nothing about allowances. Under Clause 3, IPSA is to pay the salaries and make provision for allowances. There seems to be a notion in the Bill—the Minister will correct me if I am wrong, but there is a real danger that this is how it will be seen—that this system of a mixture of pay and allowances, a large portion of which is, or always used to be, substitute pay, will be continued.
There are perfectly good grounds for genuine expenses, including travel expenses, being dealt with differently. I take the point made by the noble Lord, Lord Gordon: you certainly should not get the same amount of money if you travel to Hemel Hempstead, as I did, or to St Albans, as opposed to Orkney and Shetland. Likewise, secretarial allowances in my time were much more disciplined and properly organised. They were paid by the House and were proper expenses. That can be dealt with perfectly well. However, let us clean up the system and get away from the mixture of expenses and allowances, both of which really are an essential part of pay. I think that I have said enough.
My noble friend is absolutely right. In fact, I have written on my notes that I would be accused of dictating to Sir Christopher Kelly, for whom I have a very high regard. I do not know him well, but people speak highly of him. However, this House has enormous experience and understanding of these matters. We do not want to set up a system that will straitjacket Sir Christopher or anybody else into accepting a system where there is a very real argument for change. Therefore, the amendment is partly probing and partly to suggest a proposal which I am sure could be improved from a drafting point of view. I await the Minister's comments.
Can we allow the Deputy Chairman of Committees to follow the appropriate procedure?
I am assuming that the noble and learned Lord has moved the amendment.
I wish to comment briefly on the remarks made by the noble and learned Lord. He touches on some extremely important points. Just how permissible it is for us to comment on arrangements proposed for the other House, I am not sure, but I would suggest that the two points that he has made are different in character. The first suggests that Members should be paid a taxable salary. That is probably key to part of the solution to the problems of the other place. Indeed, the noble and learned Lord may have noticed that the Prime Minister himself made a suggestion of this kind not all that long ago.
In the second part of the amendment, the noble and learned Lord refers to,
"reasonable needs ... to maintain homes near Westminster and in or near their constituencies".
Here we are in far more difficult territory. It is one of the reasons why the previous scheme got into such difficulties in the House of Commons. One therefore ought to separate these two ideas. While I agree strongly with the first of the noble and learned Lord's ideas, I am very doubtful about the second.
The noble Earl's amendments are in this group. It is perfectly sensible for him to speak to them now.
I must admit that parts of this Committee have reminded me totally and utterly of the wireless programme "I'm Sorry I Haven't a Clue". Perhaps the Woolsack ought to be rechristened as Mornington Crescent. Another thing has amused me somewhat. Normally one gets furious with Governments for resisting perfectly sound amendments with intellectual back-up. Now we have a Government who cannot stop accepting amendments. The noble Baroness, Lady Royall, is shaking her head, but she protests too much. The noble Lord, Lord Bach, has said "I haven't a clue" at least twice, while both the noble Baroness and the noble Lord have been accepting amendments. It is a novel experience.
The point I make in my amendment is important. It goes back to what my noble and learned friend Lord Lyell was saying about Harold Wilson and the allowances business. A Member of your Lordships' House, whose name escapes me for the moment, said to me earlier that he remembers the late and much loved Lord Mellish, when he was Chief Whip in the House of Commons, saying exactly the same thing: "The allowances will make up your salary". My amendment tries to take away from the Executive. I believe that David Cameron has said that they should not get the recently recommended award, and the Prime Minister has said that he is not going to take his ministerial pension. With respect, that is gesture politics that stops people being intelligent about what salaries should be. My simple point is this. If IPSA recommends that the pay should be X, that salary should come in after the next election so that the temptation for the Executive to go down the fiddling route, for want of a better term, is taken away. As we all know, the late and much loved Mr Harold Wilson said that a week is a long time in politics. So this provision would surely enable a divorce from the shenanigans and ensure that there is no temptation towards greater shenanigans.
I am glad that the noble Earl, Lord Onslow, got in before me, because he has said that the Government Front Bench cannot stop accepting amendments. Well, now is the time to stop accepting amendments. I urge my noble friends not to accept the amendments tabled by the noble and learned Lord, Lord Lyell, and the noble Earl, Lord Onslow, for a whole variety of reasons. One was brilliantly put by the noble Lord, Lord King, in a very short and sharp intervention. When we were in the cloakroom earlier, the noble and learned Lord, Lord Lyell, encouraged me to participate in this debate. When I get that kind of encouragement, it is difficult to refuse, although I think that he might regret his encouragement.
However, I agree with the noble and learned Lord's analysis of what happened over the years that he and I were in the House of Commons. Successive Prime Ministers from both parties said to Members, "Don't accept the increases". We must remember that those increases were proposed by the Senior Salaries Review Body. It is meeting regularly at the moment under the munificent chairmanship of Bill Cockburn, and we all have faith in it. The body has done us proud in the past. But when recommendations were made, Prime Ministers would say, "Oh no, the time is not right to accept salary increases. The public won't accept it". The pay rises were voted down. I can say that I was one of the people who always voted in favour of an increase, because if it has been suggested by an independent body, you should accept it. That is right and sensible. The review body looked at the comparisons and made recommendations. When I and the noble and learned Lord, Lord Lyell, were in the other place, we got ourselves into this fankle—if noble Lords will excuse the Scots word—of salaries that were too low.
Sixty-four thousand pounds is a ridiculously low salary for a legislator. It is about time that we said that and, even more important, it is about time that they said it. It is about time that they stood up and said that they are worth more than that. I say to some of my ex-colleagues that they should start doing that. After all, a general practitioner is now paid over £100,000, and head teachers are paid similar amounts. John Humphrys gets paid hundreds of thousands of pounds for going on and undermining our whole democratic structure with his gurning and his awful—
I was going to come to him. The editor of the Daily Mail, for goodness' sake, gets over £1 million. I also found out during an interesting exchange on television that even young girls like Carrie Gracie on morning television which no one watches get paid £92,000 a year. I could not believe it. It is about time that people at the other end of the corridor said, "We are doing an important job and we deserve to be properly paid".
The amendment should not be accepted for a number of reasons. In what was again a penetrating intervention, my noble friend Lord Gordon said—with respect to the noble and learned Lord, Lord Lyell—that the situation for someone who represents a London constituency is very different from that of someone representing a Scottish, Welsh or northern English constituency. The costs are much greater for people coming from long distances. Maintaining a home here has legitimate costs, but unfortunately they have been abused. A number of Members of the House of Commons, but only a relatively small number of them, abused the system with things like duck houses and cleaning out moats. We know all of them.
They were claimed under second home allowances and they are embarrassing. Some of those who appeared in the Daily Telegraph were not abusing the system because genuine mistakes were made. I can give one example. A number of Members from all parties claimed every month for council tax, so they claimed £59 or whatever it was each month. They forgot that you pay council tax for only 10 months, not 12. It is an easy mistake to make, and it is a genuine and honest one. As a result they have been pilloried and included in the awful category of having somehow defrauded the taxpayer, which is certainly not the case. We should recognise that some of the alleged crimes that Members of the House of Commons are supposed to have committed are not as bad as they have been painted.
There are two reasons why we should not accept these amendments, particularly the amendment of the noble and learned Lord, Lord Lyell. First, as the noble Lord, Lord King, said, Christopher Kelly has been asked to look into this. We are getting ourselves into so many fankles—we had an exchange earlier—that we do not even know how many commissioners there are or what they are to do. That has not been settled yet.
Just consider the cost of all these commissioners. When I went into the House of Commons, there was one man with a small staff in the Fees Office dealing with an efficient, simple system. Now there are dozens, if not scores, if not hundreds of people, costing millions and millions of pounds, keeping an eye on the expenses, which are probably now less than the cost of keeping an eye on them. It is astonishing. Now we are to set up more commissioners, who will cost more, to keep an eye on a decreasing expenditure.
Sir Christopher Kelly has been asked to look at the system and it would be outrageous for us to suggest that we should pre-empt his examination. Even more important, it would be outrageous for this House to dictate to the other House what that system should be. It could also happen the other way round. We are in the middle of looking at our system and I have made recommendations on my own behalf to the Senior Salaries Review Body and it is right that we should put them forward. We should have a decent system of allowances here and it is important that we should argue the case for it. We should recognise that people here give service.
I heard an eloquent, powerful argument at a meeting with the Senior Salaries Review Body from a Liberal Democrat Baroness for allowances that make it possible for people to do this job full time and effectively. Other people had different points of view, but we need to put forward our arguments forcibly. We shall make the decision. The House of Commons is not going to tell us what our system is going to be and we should not tell it what its system should be.
We should get back to the Bill before long, but I agree with the noble Lord, Lord Foulkes—not necessarily with every word he said—in his opposition to my noble and learned friend's amendment. My noble and learned friend seemed concerned that the Bill will put the future of MPs' salaries and allowances into a straitjacket and that we should avoid doing that. In my opinion, Amendment 26, and also, to a degree, Amendment 21, would put them into a straitjacket and decide what the overall system is to be.
It may be that at the end of all the discussions the system outlined by my noble and learned friend will come out as the best one, although the Inland Revenue would have views on whether it would wish to be placed in the position of having to decide on the correct costs of allowing Members of Parliament the expenses of doing their job. There are undoubtedly expenses. My constituency was 120 or 125 miles from London and so, inevitably, there were not only travel costs but accommodation costs, whatever you like to call them, that had to be allowed for somehow. They could of course be included in a salary with a tax allowance to cover the expense of doing the job. Maybe that is what my noble and learned friend has in mind.
However, his amendments will put the system in a straitjacket. Whatever comes out of the second homes business, we all agree that MPs must have travel allowances, secretarial allowances and so on, and these could be properly referred to in the Bill, to be decided by whatever the mechanism is. We should not write my noble and learned friend's amendments into the Bill because it would put it into a straitjacket for the future, which we should not do for some of the reasons given by the noble Lord, Lord Foulkes.
I have some sympathy for the reasoning behind the amendments tabled by the noble and learned Lord, Lord Lyell of Markyate. There are two issues here: fixing and paying salaries and fixing and paying expenses/allowances. However, the Bill does not address the two issues; it addresses only one and a half because fixing salaries is not included in the Bill.
There is an interrelationship between the two and it is interesting that under the Bill IPSA will have to consult the SSRB. It might be worth having if the SSRB had to consult IPSA, but I am not certain that that is in the script for the SSRB. In many ways it would be far better if both jobs were done by one organisation. People accept that the SSRB has certain skills and so on, but there is an interrelationship and that is what is behind the amendments.
However, the amendments cannot be right. Amendment 21 refers to maintaining homes near Westminster and in or near constituencies. That could lead one to believe that it has got to cover two additional homes because there could be another place where the MPs actually live and they would then need a constituency home and a London home. I am not certain that that would be thought through by someone considering this, so there is an open point there for someone to look at. If we are suggesting that Parliament is to distance itself from this thinking, that is one of the things that should be done.
Secondly, the scheme must abolish the additional costs allowance. That may be right, it may be wrong, but the body is being set up to look at the various allowances and therefore it is surely not right to amend the Bill in this way. I do not believe the amendments should be supported.
I am glad that my noble and learned friend has tabled the amendment because it goes to the heart of the whole problem. As he said, this has been going on for 35 years. Why has it come to this fearful mess? Simply because the Daily Telegraph bought a disc for £300,000 and published its contents day after day. No one had any redress and, if they tried to find any redress, they were ridiculed. That is terrible because people have had their names blackguarded as a result of this. Good, honest Members of Parliament—and the majority of them are good and honest and work hard—have had their names blackguarded and their characters assassinated.
The noble Lord, Lord Foulkes, made a typical mistake—not typical of him but a mistake that is typical of many people—when he referred to moats and to duck palaces. The two gentlemen to whom he has referred did not get a penny for either of those, but they are associated with having got money and, as a result of that, they are obliged to leave Parliament. I think that is an absolute tragedy.
If we have a House of Parliament which we value and like, we should consider how best to improve Parliament and not just say, "This is a matter for the House of Commons". It is a constitutional matter. Just because a few people down there may want such and such a thing at this time, it does not mean to say that in 18 months' time many of them will still be there. This will be passed on to the next generation and therefore it is right that it should be considered by both Houses. I hope that your Lordships will do so.
However, if this has been going on for 35 years—and it was not wrong; it was the method by which people were paid—it is because no Government would accept the opinion of the Senior Salaries Review Body. I remember Baroness Seear from the Liberal Democrats, who was a member of the Senior Salaries Review Body, saying, "There is no point in being a member; whenever we suggest something it is never accepted. What is the point of going to all the trouble?" Governments did not accept its recommendations for the good reason that they felt the public would not stand it, so they accepted instead the parliamentary allowances scheme.
The conditions of that scheme were wrong, and it was unfair when people who took advantage of what they were entitled to were then accused of being wicked, milking the system and having their snouts in the trough—all those ghastly expressions that were applied to them. The Members of the House of Commons are good, honest people and it is terrible to see them blackguarded like this.
As this has been going on for so long, for 35 years, why are we in such a hurry to get it through in two weeks? There is of course a problem and we have got to try to get the solution right, but we do not get the solution right by doing it in such a hurry. I do not blame the noble Lord, Lord Bach, for saying, "I'll take this back and I'll think about it". The need to get the solution right is the reason for having three, good, set periods between the stages of the Bill as it goes through Parliament and not doing it all in a hurry, because, otherwise, we will come to the wrong view.
There are lot of problems here, but my noble and learned friend has accentuated them by suggesting that if we pay people a proper salary and cut out the expenses, everyone will supposedly be satisfied—except, of course, the moment you pay them a proper salary, there will be such a rumpus in the newspapers and everywhere else that, as a result of all this hoo-ha, all the Members of Parliament have done is pay themselves more. That is an awful problem. However, we have got to be careful not to hurry this and produce an inadequate result.
I support what the noble Earl has said. I was all those years ago—although it is hard to believe—a member of the Senior Salaries Review Body, of which Baroness Seear was then also a member, under the chairmanship of Lord Boyle. I remember that we would year after year recommend increases and found it extremely frustrating that, year after year, those increases were resisted by Members of the House of Commons for reasons of their own. I remember in particular Lord Boyle coining a good expression for that—"competitive self-abasement"—and he foresaw then that it would lead to the sort of trouble that we are experiencing today.
Perhaps I may enlighten the Committee as to how previously we went about looking after our own interests. When I ceased to be the Chief Whip, I became the chairman of the Labour Peers Group in 1997. We would have to respond to invitations to submit evidence on behalf of Labour Peers to the Senior Salaries Review Body. I quickly found out that the review board received evidence from the Conservatives, the Liberal Democrats, the Cross Benches as well as Labour, which invariably presented an opportunity to divide and conquer. We quickly established that we would make joint, rather than separate, submissions on behalf of the whole group.
We are talking about the 1980s and the 1990s. Each time there was an opportunity to alter our allowances, they went up by a pound or two. The regime at the time said that anything to do with public expenditure relating to Members of the House of Lords had to be clamped down on. I discovered that the best way to achieve an increase worth having was to produce a well researched paper. I went to the Library and obtained evidence, the most telling of which as far as the overnight allowance was concerned was a league table published every year by the RAC of the cost of a night's stay in a London hotel, from one-star to five-star. I believe that the noble Viscount, Lord Falkland, was a member of our little committee; he shakes his head, but not in the way that I wanted him to. Is he prepared to reshake it? Yes, he is. I discovered that while overnight allowance at the time was in the region of £70 or £80, the actual price of a three-star hotel was about £120. I recommended to the committee—six or eight of us, meeting informally—that we should go for the three-star option, which would give us a big increase of £20 or £30. A member of the committee who I am sorry is not here, the noble Lord, Lord Marsh, said that he would not agree to that. I asked him why. He said, "We are not three-star people; we are five-star people, and we should go for five-star". We managed to persuade him that to go for five-star was too big a jump, so we went for three-star, and the overnight allowance, instead of going up by two or three pounds, in one fell swoop went up by £34 a night thereon. I often think that when colleagues in the House are asked what Ted Graham will be remembered for, they will say not the maiden speech, the ambush or the victory, but the fact that he had a major part to play in increasing the overnight allowance.
There is nothing wrong with the sense of the amendment, but we need to keep in mind the fact that colleagues in the Commons have already passed this Bill—this is their Bill. I shall not go into the politics of the speed at which it is going or the circumstances—everyone has had their two-pennyworth on that that and I do not want to muddy the waters—but we need to be very careful, because the amendment is telling the Commons what regime we believe they should be under. My understanding is that this House will get its opportunity to look at the generality of the regime and fit it to our circumstances. Most people here who like me have friends in the other House will know how sick at heart the majority of them are at being landed in the middle of a dreadful situation. That goes for all parties—I am very pleased that no one in this House has ever sought to make fish of one and fowl of the other as far as responsibility is concerned. However, we need to work together, not only as two Houses but as four Benches within this House. If we do nothing more than recognise that the Commons are entitled to their view, it does not mean that the Bill cannot be amended—it is being amended sensibly to meet the situation—but we need to be careful to lay down the law for the Commons.
I believe that we will come to a point where there is very little difference between the Houses. We know the major difference: that is a salaried House; this is an unsalaried House. How this House is reformed remains to be seen; for example, whether it should be elected or appointed. We should tread very carefully in trying to influence the process, even on the margin, knowing that the Commons can put it right. We do not want to create an atmosphere between the two Houses where they eventually say, "We are trying to get a Bill which suits our circumstances, and when it goes down there, people try to get their own back for what we've done up here". The Leader of the House has the difficult job of persuading us to agree not only to the Bill as we have it but to amendments as they come forward. She deserves the utmost support, and she certainly has mine.
Despite the very wise words of the noble Lord, Lord Graham of Edmonton, as I have been listening to the debate on the amendment tabled by the noble and learned Lord, Lord Lyell of Markyate, I have become increasingly concerned about the unsuitability of our discussing Clauses 2 and 3 before Sir Christopher Kelly reports. It is extraordinarily difficult to decide whether we should accept the amendment tabled by the noble and learned Lord or by the noble Earl, Lord Onslow—or any other amendments—when we do not know what Sir Christopher Kelly is going to say or what further matters will come from the Senior Salaries Review Body. We are in a vacuum; we are talking in this vacuum and it is extraordinarily unsuitable. I appreciate that the House of Commons has gone through the same unsuitable procedure and has agreed it. We have to recognise what we are about and how wrong it is that we should be doing it.
I am talking only about Clauses 2 and 3. I am not at the moment talking about the entire Bill; I have a view but I do not think that it is appropriate to express it at the moment. I am concerned that we have been debating for some 42 minutes whether the amendment tabled by the noble and learned Lord, Lord Lyell of Markyate, should be passed, when it is inappropriate to do so now, not because the proposal is necessarily right or wrong but because we cannot do this until we know what Sir Christopher Kelly says.
I want to contribute briefly to the debate, not least because I want to put it on record that I am breaking the habit of a lifetime and agreeing with the noble Lord, Lord Foulkes of Cumnock.
It is not just for the reasons given by the noble and learned Baroness that I think that it would be totally inappropriate to accept the amendment but because it would go against the whole rationale of the Bill. The Bill is trying to divide the responsibility for making recommendations on matters of salary and allowances, taking it away from the Divisions that have taken place on the Floor of the House of Commons. I was there in July 1974, a very new Member; I was amazed that the House of Commons should vote on these matters, particularly that it should vote in the way that the noble Lord, Lord Foulkes, said, under the influence of a Prime Minister who was not prepared to accept the independent advice of the SSRB.
I entirely endorse the comment of the noble and learned Lord, Lord Lloyd of Berwick. Yes, there were competitive self-abasement challenges to each party every time this came up. I did not succumb to that on many occasions and when I subsequently became Chief Whip for my party and shadow Leader of the House I tried to encourage my colleagues to stand up for what they thought was right. But we are not there now and, while it is entirely understandable that the noble and learned Lord, Lord Lyell of Markyate, is trying to bring together these two issues—they have been seen as separate in the past—the wrong way to go about it is surely for the House of Lords, at this stage, to pre-empt the discussions of the SSRB, to pre-empt the Kelly inquiry and to pre-empt, indeed, the discussions of IPSA. That would be extraordinary. At the very moment when Members of Parliament no longer think that they should be defining precisely what will happen but should take professional advice from outside, get good comparators and look at this issue in a wider context, what would the public say if the House of Lords imposed a new straitjacket, to use the noble and learned Lord's phrase, by putting these amendments into the Bill? I hope that the government Front Bench will very speedily take advantage of the mood throughout the Committee that it would be inappropriate for us to proceed in this way.
I think that it will reject it, so why are we pursuing it in this way? I await with interest what the Minister has to say.
Before the noble Lord, Lord Strathclyde, sums up, I wonder whether I could ask a technical question. The money that would pay for the implementation of Amendment 21, were it to be accepted, would flow from the Members Estimate, which is laid by the Treasury and stood at £171 million in 2007-08. It deals with a whole range of things, mainly salaries and allowances, but also important things such as centrally provided IT, staff training and, indeed, Cranborne money and Short money.
When the parliamentary standards authority is set up, will it be responsible for the Members Estimate in its entirety? As currently constituted, the Members Estimate has an audit committee and an accounting officer, and the system is pretty well established. When the new parliamentary standards authority takes over the role of looking after this £171 million, will it do that in its entirety or will there be some other arrangement for handling the Members Estimate as it is currently laid?
When I saw this amendment on the Marshalled List, I knew that it would lead to quite a substantial debate, not least from former Members of another place who have not only a great deal of interest in the subject but also a great deal of knowledge gained over many years. So it was a delight to hear the noble Lord, Lord Foulkes of Cumnock, say how he felt that £64,000 was not a great deal of money. It is to the people of Cumnock. That is part, no doubt, of the competitive debasing that the noble and learned Lord, Lord Lloyd, spoke about.
We could spend a great deal of time talking about the pay and salaries of another place. In fact, we have spent more time this afternoon talking about the remuneration of another place than we ever do talking about our own. At some stage, we ought to put that right.
The point that has been made, particularly by the noble and learned Baroness, Lady Butler-Sloss, about not pre-empting the Kelly commission, is right. As a principle, we should not spend too much time debating the pay of another place given that we would not much like another place talking about how we are funded. That is also a consideration. However, this debate has been useful. Our colleagues in another place on all sides of the House sometimes feel beleaguered and misunderstood. This has been an opportunity for some noble Lords to make some very supportive statements about Members of another place, which will no doubt be welcomed, although probably ignored by everybody else.
I hope that my noble and learned friend will not press his amendment. I look forward to hearing what the Minister has to say.
This has been an extremely interesting debate. Although the noble and learned Lord, Lord Lyell, will probably feel that his amendments have not received an enthusiastic response from all sides of the Committee, none the less he has provoked a very interesting debate. His comments on the history of allowances, salaries and SSRB recommendations over the past 30 years were very pertinent. I have no doubt that some of the difficulties that the House of Commons has got itself into are for the very reasons that the noble and learned Lord has suggested. My noble friend Lord Foulkes, in disagreeing with the amendment, also made some very pertinent points.
The noble and learned Lord, Lord Lloyd, referred to "competitive self-abasement". As a Minister who has, in the past two years, twice requested no salary increase, in the voluntary way that Ministers do that, I know something of the matter. To be fair, since Governments of different hues have pursued this, I should defend why that has happened. It has often been at a time of great economic challenge. Just at the moment, when the country is going through a considerable economic challenge, it is not unreasonable for Ministers to send a signal that they understand those pressures.
Does the Minister also accept that under several Governments, when it was alleged that the economy was in very good shape, there was no attempt to redeem the previous promises?
That is the other side of the coin, of course. My understanding is that the SSRB, which has a thankless task in this area, will take account—
I do not agree. One needs to recognise that the review body covers many more people than just MPs. It takes account of the fact that there have been times when pay increases have not been accepted and then makes allowances for that. In the circumstances that the noble Lord, Lord Tyler, suggests, the increase that the review body recommends is probably above the going rate of inflation, which leads to the issue that arises here. I do not seek to defend that, but we need to understand how we have got here and why Governments sometimes do that.
We accept the point made by the noble Earl, Lord Ferrers, that many good people from different parts of the House of Commons have been damaged in the past few months. He asks: why the need for speed? It is simple, although I understand why noble Lords are concerned about rushed legislation, which is a perfectly substantive point to raise. I say to the noble Earl, Lord Onslow, that it is unusual for Governments to be criticised for accepting amendments from noble Lords, but we are accepting a number of amendments—although, alas, not his—in a spirit of understanding. In order to restore public confidence, it is necessary for legislation to be passed as soon as it can be. I believe that we have received the support of the other party Front Benches, which have taken part in the joint discussions. Action has had to be taken quickly in order to restore public confidence. That does not mean that the Government are not listening to all the debate on the legislation. It is in that spirit that we have accepted a number of amendments. We will write quickly to noble Lords in the way that was suggested in our previous debate and no doubt we will come back on Report and discuss these matters further.
In the light of the debate, the noble and learned Lord, Lord Lyell, will not be surprised that the Government are not persuaded that this is a matter on which the House of Lords ought to intervene. From a practical point of view, we think that this is a matter for the Commons. Noble Lords have cautioned this House, in seeking to involve itself in a matter that ought to belong to the other place, that our own allowance and expenses system is under scrutiny by the SSRB at the moment. Noble Lords know that the review body will make recommendations to the Prime Minister and the Speaker of the House and it will then be for this House to decide how to take the matter forward. It is right that we so do.
The formulation of the noble and learned Lord's amendment can be debated. I do not need to go into that, save to say that I thought that my noble friend Lord Gordon raised a specific and detailed point about the impact that it would have if we took on the noble and learned Lord's formulation regarding Members of the other place who lived a very long way from London.
The noble and learned Baroness, Lady Butler-Sloss, said that we were debating Clauses 2 and 3 in a vacuum. That is one way to look at it, but nothing in the Bill pre-empts the work of Sir Christopher Kelly's committee. Clauses 2 and 3 in particular should be seen as laying the architecture for what will follow. The Bill lays the foundation to implement any recommendations made by the Committee on Standards in Public Life. In that sense, it is acceptable to go in the direction that we seek to go.
That is my understanding. I come back to the point that the noble and learned Lord made at the start: because of past history, we are seeking to get away from ambiguity and fudge and to have a transparent and straightforward system from which Members in the other place who do the right thing have nothing to fear. I give him that assurance.
The noble Earl, Lord Onslow, talked about gesture politics and the Executive. I have tried to give some reason why it has been reasonable for Governments to have done what they have, although I accept that we have ended up with problems as a result. The problem with the noble Earl's amendments is that they would interfere in what the House of Commons wishes to do. For instance, a resolution was made in July 2008 to accept the outcome of SSRB recommendations without amendment. Clause 2 reflects that arrangement. The noble Earl's Amendment 21A would prevent the House of Commons from resolving to make any change in MPs' salaries during the course of a Parliament. The noble Earl's other amendment would delay the introduction of the scheme set out in the Bill. I have no disagreement with the noble Earl in criticising the circumstances that have led to the situation that we find ourselves in but, however much we need to discuss the Bill further, it provides the architecture for getting a much more sensible and transparent system in future.
If I may reply before my noble and learned friend Lord Lyell, I completely agree with what the noble Lord, Lord Foulkes, has said. I put this amendment down to try—and I succeeded, as my noble friend has with his amendments—to provoke a discussion on the whole question of how we got into this ghastly muddle. If my amendment has enabled that to happen, it has served its purpose. The amendment happens to reflect my own personal whim of how this should be done, but I did not expect anyone to accept it. I wanted above all to have an opportunity to say, as several noble Lords have done, that there are a lot of very honourable men in the House of Commons, that they should go on being called "honourable Members", that we should respect them as such and that we will do everything that we can to give them back the confidence that they deserve. I shall certainly not be moving my amendment.
I agree with what my noble friend has said; he has said many of the things that I was about to. We are coming up to one hour on this debate and I am grateful to everyone who has taken part in it. I agree with a great many of their opinions. My objective was indeed to throw light on something that has been at the heart of this developing problem over many years and to encourage Sir Christopher and Parliament itself to try to tackle this problem boldly, cleanly and in a way that will enhance the reputation of Parliament in future. I beg leave to withdraw the amendment.
Amendment 21 withdrawn.
Amendment 21A not moved.
Moved by Baroness Royall of Blaisdon
21B: Clause 2, page 2, line 2, leave out "(as to which see further section 7)"
Amendment 21B agreed.
I will also speak to Amendments 24, 25 and 27 to 31. This group follows the previous debate very neatly; I hope that we need not spend long on it. It picks up on exactly the points that so many noble Lords have just made, and I will use their own language. The amendment is to ensure that the legislation does not dictate to Sir Christopher Kelly and does not create a straitjacket.
In this group of amendments I have sought neutral terminology. Rather than using the term "allowances" I have sought to use a rather simpler and more neutral term: "payments". The public understand an allowance to be an amount of money set aside for a designated purpose, and that the person entitled to the allowance can claim up to the amount of the allowance. An expense is paid in reimbursement of money paid out and, generally, a receipt would have to be produced. Without wanting to re-open the wounds of what has been happening, a big difficulty has been confusion between what expenses and what allowances are, with one being used for what the public would see as properly the other.
I seek to avoid anticipating the scheme that may be designed and precluding any possible arrangement. The noble Lord, Lord Hunt, said that Clause 3 does not pre-empt but lays the architecture and only that. I fear that by using the term "allowances" it does a little more than that. It pre-empts, and I hope that the Bill can, as so many noble Lords clearly wish, leave the House of Lords without us having pre-empted what may be decided quite soon. I beg to move.
I will be brief. I agree with the noble Baroness, Lady Hamwee, that there is always a problem. There has been a problem throughout the Bill of pre-empting the work of Christopher Kelly. I do not share with the noble Baroness the same problem with the word "allowances". To me, expenses are something for which you have to put in receipts for a particular purpose, and "payments" to me sounds a bit more like a salary. I was rather comfortable with the word "allowances", and thought it fitted the bill pretty well.
I will be interested to hear what the thinking was behind the Government's approach. Whether this Bill becomes law next week or not, as soon as Christopher Kelly has reported it may be that we will have to revisit this whole issue again. Maybe the noble Baroness will have her day at some stage in the next Session of Parliament.
This has been a short but interesting debate. I assure the noble Baroness, Lady Hamwee, that the Bill in no way seeks to pre-empt as she fears. Clause 3 would establish an independent system of regulation of expenses and allowances to replace the current system. In establishing IPSA, we are creating a body that must first take over responsibility for administration of the existing system which, of course, is a system of allowances.
As noble Lords will know—we have discussed it—there is a review under way. One supposes, although it would not be right for me to presume, that even after it reports there may well be a system of allowances to administer whatever that may comprise. The important thing here, since we are trying to create the architecture that will work in the future, is that we do not want to limit the kinds of allowances that may be paid.
The Concise Oxford Dictionary definition of allowances is an amount or sum allowed to a person, especially regularly, for a stated purpose. That seems to be a wholly acceptable description. We should not have any problem with the word "allowance". It allows us to continue with the transitional arrangements, but it does not really pre-empt Sir Christopher or, indeed, the system in the future.
I will not press it, but I simply disagree with the noble Lord's interpretation. I had certainly never thought of "payment" having the implication of a salary. A payment is money transferred—
I did not mention a salary. I said it was an amount or sum allowed to a person, especially regularly, for a stated purpose.
The noble Lord, Lord Strathclyde, said that he felt that "payment" had the implications of "salary". My concern is that the legislation will pre-empt, which is exactly what I seek to avoid. Whatever the noble Lord has to say, even from the Dispatch Box, if something means one thing he cannot make it mean another. However, I have made my point. I beg leave to withdraw the amendment.
Amendment 23 withdrawn.
Amendments 24 and 25 not moved.
Moved by Lord Cope of Berkeley
25A: Clause 3, page 2, line 11, at end insert—
At the risk of incurring the wrath of the noble Earl, Lord Onslow, I agree. We support the noble Lord's amendment.
Amendment 25A agreed.
Moved by Lord Cope of Berkeley
25B: Clause 3, page 2, line 14, leave out paragraph (c)
Amendment 25B agreed.
Amendments 26 to 28 not moved.
Moved by Lord Hunt of Kings Heath
28A: Clause 3, page 2, line 30, at end insert—
"(7A) The scheme may provide for allowances to be payable in connection with a person's ceasing to be a member of the House of Commons; and references in this Act to the payment of an allowance to a member are to be read accordingly."
The amendment makes clear that the allowances which may be included in the scheme and paid by IPSA include resettlement grants. This is the allowance paid to an MP when he or she loses a seat or steps down from the House, and is intended to be the equivalent of redundancy pay for an employed person. It is an inherent part of the allowances scheme. We decided to make specific reference to it to put it beyond doubt that the allowance can be included in the scheme since, strictly, it is not paid to a Member of the House of Commons, but only to a former Member. I hope that the amendment commends itself to the House. I beg to move.
Amendment 28A agreed.
Clause 3, as amended, agreed.
Clause 4: Dealing with claims under the scheme
Amendments 29 to 33 not moved.
Moved by Baroness Royall of Blaisdon
33A: Clause 4, page 3, line 15, leave out from "is" to "to" in line 16
Amendment 33A agreed.
Clause 4, as amended, agreed.
Clause 5: MPs' code of conduct relating to financial interests
Amendments 34 and 35 had been withdrawn from the Marshalled List.
Moved by Baroness Hamwee
36: Clause 5, page 3, line 28, leave out "regularly" and insert "from time to time"
In moving Amendment 36, I will speak also to Amendments 37, 39 and 41. This is something of a ragbag of amendments. The first would change the term "regularly" to "from time to time" in Clause 5. "Regularly" suggests that the code will be reviewed at regular intervals, with the same gap between each review. Perhaps the Government can tell the Committee whether they envisage that the code will be reviewed annually, every six months, every five years, or whatever. "From time to time" allows a little more flexibility; it is simply a common-sense suggestion. I look forward to hearing what the Minister has to say about that.
Amendment 37 is, again, a probing amendment. It would provide that the Commons Committee on Standards and Privileges or any successor committee is consulted, simply because, as we know, committees from time to time—but not regularly, though maybe occasionally—change their titles. I cannot imagine that the Government would wish to see a successor committee that covered the same functions excluded from the Bill. Amendment 39 is also a probing amendment. The term "specified" is used in Clause 5 in the context of "specified payment", "specified benefit in kind" and so on. I do not know whether it is intended that the specification will come within the code, but I am using this amendment to ask the question.
Finally, I come to Amendment 41. Financial interests are defined as including indirect financial interests. The example is given of the financial interest of a member of the family of the Member concerned. My amendment—again, probing—seeks to understand what is meant by family in this context. Does it include a partner who is not married to the Member, or a civil partner? A partner would, these days, normally be regarded as a member of the family but not everybody would see it that way. Conversely, a distant cousin may be a member of the family, but it would be unreasonable to expect Members to have knowledge of the affairs of distant cousins. In between are sons, daughters, sibling and parents—how far does family extend in this context? There is an absolute requirement to register, which is why this is important, unless we are told that IPSA is to deal with these fine points under the term "specified" in what it specifies, which is of course the subject of one of the previous amendments. I beg to move.
Grouped with these amendments are Amendments 39A and 39B in my name, both of which seek to leave out the words "by any specified means" in subsections (8)(a) and (b). I entirely agree that the code must prohibit a Member advocating a cause in exchange for consideration, but I do not want the code to set out the means by which this might be done. Apart from anything else, somebody might be ingenious enough to find a means that had not been thought of when the code for advocating was devised, which would then escape. I do not think that the words are necessary. If the code contains provisions that prohibit a Member advocating or initiating a cause in exchange for payment, that seems to me to be sufficient. I do not want to tie the code down in this way; it will be clear enough without the words that I am seeking to leave out. The same applies to paragraph (b).
I support the noble Baroness's wording of "from time to time". The words as they currently are in the Bill will set up an expectation which might be seized upon by Members of the other House in points of order to the Speaker requiring changes. "From time to time" more accurately reflects what will be the case. On the issue of members of the family, I refer the noble Baroness, Lady Hamwee, to Category 9 in the code of conduct for Members of Parliament, where, under "Shareholdings", it refers to:
"Interests in shareholdings held by the Member, either personally, or with or on behalf of the Member's spouse or partner or dependent children, in any public or private company".
That has generally been the definition of "family" over a number of years as far as the House of Commons Committee on Standards and Privileges has been concerned.
I endorse the amendments tabled by the noble Lord, Lord Cope. Paid advocacy is paid advocacy and I share his view and concern that if the means by which that is done are set out in a code, someone could be ingenious enough to get around it. In one of the letters that the Leader of the House sent out, she made reference to the fact that paid advocacy is already an offence in the Scottish Parliament under legislation passed there. From recollection, I do not think there was any qualification of that; it did not have to be done in a particular way. However, the amendments of the noble Lord, Lord Cope, strengthen this provision.
Amendment 36 seeks to change the timescale on which IPSA would review the MPs' code of conduct relating to financial interests from "regularly" to "from time to time". However, as presently drafted, the frequency and depth of review of the code is open to reasonable interpretation. To change the wording to "from time to time" would not necessarily make reviews less frequent, but would just remove the literal requirement that they be regular. A regular review if the system appeared to be operating satisfactorily, however, would not necessarily be onerous or require changes to be made to the system. I also suggest that it is important that the reviews are carried out regularly. "From time to time" seems to have a slightly ad hoc quality about it—perhaps something rather random. "Regularly", on the other hand, implies that IPSA should have a scheme for review of the code and should plan to review it at regular intervals. It is for IPSA to decide how often the code is reviewed. I would therefore ask the noble Baroness to withdraw that amendment.
I turn now to Amendment 37, which seeks to ensure that any subsequent committee established to replace the Committee on Standards and Privileges is consulted when IPSA reviews the MPs' code of conduct relating to financial interests. However, Clause 10(2) of the Bill already makes arrangements for the interpretation of changes to names and/or functions of those committees referred to in the Bill. Clause 10 therefore already ensures that any successor committee would be consulted. I therefore deem this amendment to be unnecessary.
Amendment 39 seeks to clarify that specified information about specified financial interests—the MPs' code of conduct relating to financial interests would require MPs to enter this in the IPSA-maintained register—must be information which is specified in the code. The Government recognise that it is important—especially when a failure to follow the rules set out in the code could result in a criminal charge—that MPs are clear what they need to comply with. That is why the clause as drafted makes it very clear that the code must be specific about what it describes both in relation to the registration of interests and the rules on paid advocacy. This is the case. Indeed, other amendments before us today consider that we use the word "specified" too frequently in the clause. But the wording of Clause 5(7) is perfectly clear. It states:
"The code must require members to register specified information about specified financial interests".
The requirement is already that matters be specified in the code.
As regards the amendments of the noble Lord, Lord Cope, it is important that MPs can be clear what is meant by "paid advocacy". Breach of the rules on paid advocacy has always been taken extremely seriously by both Houses. Although there is no longer to be an offence of breaching the paid advocacy rules, it is still something that deserves to be spelt out in detail. In fact, the other place insisted on putting additional references to specified benefits in kind so as to make clear that they had to be spelt out in the rules. As the other place has looked at this clause and amended it in the opposite direction to that which the noble Lord now suggests, I urge the Committee to leave it to the other place to decide how precisely it wants to have a set of rules which applies to it only to be spelt out.
Finally, Amendment 41—I am grateful to my noble friend Lord Campbell-Savours for his advice—seeks to widen the scope of the term "family" or to clarify it. However, "family" in this context would be given its ordinary meaning and would already include the Member's spouse, civil partner and partner. By specifying the inclusion of the relationships of spouse, civil partner and partner, the amendment might more narrowly define the family. If the clause were amended in this way, specifying some relationships and not others, it would be possible to conclude that those relationships not referred to must not have been intended to be included in the definition of "family". I therefore urge the Committee to respect the definition of "family" as set out by my noble friend in the code of conduct. I urge the noble Baroness to withdraw the amendment.
I am grateful to the noble Baroness for explaining "successor". We were indeed seeking for there to be no fixed timescale. The noble Baroness says that is for IPSA to determine. It seems to us that the Bill's wording cuts down the options.
I am grateful to the noble Lord, Lord Campbell-Savours. I was aware that the term is dealt with in the current code, which is why I was probing the matter. He may not be aware that when the term became an issue in this House a few years ago, it caused a ruckus. I do not seek to narrow it. The noble Baroness is responding to my amendment. I was looking for a way to probe it, but I am left with the question: what about one's second cousin twice removed who lives in Australia, who is a member of the family? That seems to me a bit of a problem. It would not be reasonable to expect that one should know that. We cannot disown our relations, though some of us might sometimes like to in particular cases. I thank the noble Baroness for her explanation although I am still left with a little doubt on that final matter. I beg leave to withdraw the amendment.
Amendment 36 withdrawn.
Amendment 37 not moved.
House resumed. Committee to begin again not before 8.34 pm