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Bill of Rights

Bills Presented – in the House of Commons at 4:14 pm on 21st July 2009.

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Votes in this debate

Lords amendment 1

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following: Lords amendments 2 to 31.

Photo of Bill Cash Bill Cash Conservative, Stone

The Bill has received a great deal of attention for many reasons, but unfortunately the amendment that was passed in the House of Lords about the protection of the Bill of Rights, which goes to the heart of our proceedings in Parliament and therefore our sovereignty, right to free speech and a raft of other matters, does not achieve its objectives-at least, it achieves the wrong objectives. I deeply regret the fact that the Attorney-General is not a Member of this House, because it is more appropriate to deal with the Independent Parliamentary Standards Authority in this place so that we can ensure that we properly protect the privileges and rights of this House and of Members of Parliament, and that proper and fair procedures will apply that will not be overridden by an attempt to refer an issue to the European Court of Human Rights or the European Court of Justice. We do not hold those rights for our own benefit: we hold them on behalf of the electorate. It is on that point that I make my main case.

Photo of Patrick Cormack Patrick Cormack Chair, Northern Ireland Affairs Committee

I do not for a minute dissent from what my hon. Friend is saying. He is moving an important amendment that certainly has my support. Does he agree that it is appalling that we have only one hour to consider a completely rewritten Bill? I readily acknowledge that it was substantially improved in the House of Lords, but we have only one hour to consider all the important Lords amendments, as well as my hon. Friend's very important amendment. Is this not a terrible way to treat the House on the last day before we rise?

Photo of Bill Cash Bill Cash Conservative, Stone

I could not agree more with my hon. Friend. The entire proceedings on this Bill have been conducted in an extremely shabby manner. Indeed, some important statements have been made by some of the most distinguished officials in the House-and in the other place-and the reservations that have been expressed, for example by the House of Lords Constitution Committee, about the fast-tracking of this Bill are a matter of record.

The problem is that because of the sovereignty of this House it is essential that we protect our supremacy with regard to the borderline between what we do here and what may be referred to the European Court of Justice or the European Court at Strasbourg. The wording that I originally proposed, and which was adopted by my right hon. Friends on the Front Bench a couple of weeks ago, contained the words that I now propose to reinsert.

Unfortunately, the Bill was amended in the Lords so that the only words left were:

"Nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689."

The opening words were knocked out and excluded. I regard them as absolutely crucial to preserving the sovereignty of this House, and indeed of the electorate. They are as follows:

"Notwithstanding any provision of the European Communities Act 1972, the European Convention of Human Rights or the Human Rights Act 1998".

Having made that reservation, I concur with the wording of Lords amendment 1, as I have just set out.

Some distinguished lawyers took part in very learned discussions in the House of Lords. Lord Mackay of Clashfern and Lord Howe of Aberavon both made a number of brief comments but they did not go into the merits of the proposals to any extent. They simply averred their own opinions in a few sentences, whereas the Attorney-General gave a lengthy dissertation on the questions of privilege and other matters that relate to the Bill.

The fundamental question is as follows: if a disgruntled or aggrieved person raised an issue that ultimately led to judicial review, would a reference to the ECJ-or, to a slightly lesser extent, the European Court of Human Rights-override the jurisdiction of this House? The Attorney-General ruled out that possibility. In contrast, Lord Mackay, a former Lord Chancellor, said that although he did not think such a situation likely to arise, he could not rule it out. I have conferred on this matter with a number of eminent constitutional authorities-of such distinction that they are called on to give advice on matters in all the courts of law and in Parliament-and they agree with me that it is important that we retain in the Bill the words that my amendment proposes to reinsert. They accept that it would not be possible to assume that neither the ECJ nor the ECHR would not get their hands on a particular matter.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General, Shadow Secretary of State

I shall cheerfully support my hon. Friend's amendment if it is put to the vote, but I have one question for him. He mentioned the ECHR, but it does not have-and never has had-any jurisdiction over this or any other court in the land. It is the embodiment of a treaty obligation. It can rule that the proceedings of this House, for example, might be in breach of the European convention on human rights-although it might be foolish of it to do so-but that ruling cannot be binding. For that reason, the part of the amendment that he is presenting would not have any impact one way or another. The rest of it is of greater importance.

Photo of Bill Cash Bill Cash Conservative, Stone 4:45 pm, 21st July 2009

I am grateful to my hon. and learned Friend. I am not going to disagree with him on that point, but I am concerned to remove uncertainty in a matter of such importance as this. In passing, I want to pay tribute to Lord Jenkin of Roding for the extremely efficient way that he dealt with this matter in the House of Lords.

I shall begin by setting out the problems posed by the European convention on human rights. There has been a great deal of comment, in the House of Lords and elsewhere, about a case in 2003 known as A. v. the United Kingdom. It is a lengthy judgment, and I do not have the slightest intention of going through all the detail, but it did not apply only to the UK. Other nations were concerned about possible intrusion into their privileges-Italy, France, Ireland, Finland, the Netherlands, Belgium and Austria played an active part in the case. It can fairly be said that the case did not settle the question of the application of article 6 of the European convention on human rights. I would go further and say the court concluded that

"the parliamentary immunity enjoyed by the Member of Parliament in the present case"-

A. v. the United Kingdom-

"pursued the legitimate aims...of protecting free speech in Parliament and maintaining the separation of power between the legislature and the judiciary."-[ Hansard, House of Lords, 20 July 2009; Vol. 712, c. 1420.]

However, that was only with reference to that case, and there is no doubt whatever that the European Court did not exclude the possibility of difficulties in maintaining parliamentary privilege and that the court might in future need to take steps to override, effectively, what is done in this House.

The Court continued:

"The absolute immunity enjoyed by MPs is moreover designed to protect the interests of Parliament as a whole as opposed to those of individual MPs."

That is part of the Court's reasoning. The Bill would affect individual MPs, so it follows that the Court's nostrum would not be applicable if an MP was concerned whether he had had a fair trial or whether he was affected by the question of free speech or other matters that are included in the convention.

The question of the European charter of fundamental rights was not examined in the deliberations in the Lords to any significant or useful extent. The reality is that the charter, which was attached to the Lisbon treaty and which is binding, contains a lot of overlaps with the European convention on human rights. They run parallel, but of course the protocol that incorporates the charter invokes the ECJ. I should like to comment on the problems that I believe would arise in that context. We should also bear it in mind that under the well-established cases of Costa v. ENEL 1964 and cases such as Handelsgesellschaft and Van Gend en Loos, the Court in Luxembourg has made it absolutely explicit that

"the laws stemming from the Treaty, an independent source of law...cannot" because of its special and original

"nature be overridden by" domestic legal provisions,

"however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question."

The bottom line is this:

"This case...unequivocally declares the supremacy of Community law over inconsistent domestic law, including in particular domestic law introduced after accession. Community law also takes priority over inconsistent provisions of national constitutional law."

It is clear from article 53 of the charter of fundamental rights, which refers to the level of protection, that national constitutions are themselves involved. It states:

"Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised...by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms and by the Member States' constitutions."

If questions of privilege in relation to article 9 of the Bill of Rights, which includes references to proceedings in Parliament from which all other things flow, such as freedom of speech and so on, as well as the fairness of trials, are to be properly implemented, it is essential that we do not find ourselves in a position where there is any uncertainty about whether European law, and in particular the charter in regard to the ECJ, would override the proceedings of the House.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

Has my hon. Friend taken note of the fact that the treaty of Lisbon, if ratified, will extend the competence of the EU into matters of law and the rights of the accused? If someone claimed to have been libelled or if a trial was prejudiced by proceedings in the House and what is said here, they could go to the European Court of Justice under the charter of fundamental rights to obtain redress. That, unlike the convention, is binding on us and is superior to English law because it is embedded in a superior treaty.

Photo of Bill Cash Bill Cash Conservative, Stone

I absolutely agree. It was extremely disappointing to read both the Attorney-General's letter and her speech and find that she was so categoric about something that one simply cannot be categoric about. Because the question involves matters of such supreme importance, it is absolutely essential that we put it beyond any doubt. The Justice Secretary may say, "Oh, we don't need to do this," but my response would be that in the course of the proceedings on clauses 9 and 10 I put it to him that the Clerk of the House and the Speaker's counsel had come up with certain issues and when I asked whether he thought they were wrong, he said, "Oh no, they're not wrong", and then he just ploughed on. As it happens, the Government eventually had to give way, but in these circumstances it is essential that we act not merely with an abundance of caution but with prudence. It is precisely the judicial activism of the European Court of Justice and the Court at Strasbourg that continuously creates an extension of judicial activity and supremacy over our laws.

Photo of Bernard Jenkin Bernard Jenkin Conservative, North Essex

Although the Attorney-General was pretty categoric, she was not absolutely categoric. She said that

"it is very unlikely that anything in the Bill would give rise to subject matter that could be interpreted by the European Court of Justice."-[ Hansard, House of Lords, 20 July 2009; Vol. 712, c. 1423.]

The Attorney-General has not said "Never". If there was ever a case for belt and braces, it would seem to be this. If she had said that it could never possibly happen, the Government could legitimately oppose the amendment, but the fact that she said merely that it was "very unlikely" suggests that she holds out the possibility that it could happen.

Photo of Bill Cash Bill Cash Conservative, Stone

Indeed, and I am grateful to my hon. Friend for making that important point.

If the Justice Secretary raises a question about whether the provisions of the charter are indeed addressed only to the institutions and bodies of the Union-as I anticipate he may-he ought to bear in mind the fact that the matter arises under article 51, whereas the reference I gave just now to the level of protection arises under article 53, which contains the phrase:

"Nothing in this Charter shall be interpreted as restricting".

That includes member states' constitutions. That provision has to override article 51, so in that, even if in no other manner, it clearly creates a conflict between the two provisions, which is a good reason why we need to make sure the measure is completely right.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

The uncertainty that my hon. Friend has expressed in great detail should worry all of us. Does he agree that realistically the Government must understand that there are constitutional issues up in the air? Do they not simply desire for public relations purposes to get a Bill-any Bill-on to the statute book before the House rises? That is an appalling abuse of the parliamentary system and does us collectively no great favours. It may give the Government a few good headlines tomorrow morning about how they got the Bill through, but the Bill has already been emasculated and would be further emasculated if we take my hon. Friend's proposals on board.

Photo of Bill Cash Bill Cash Conservative, Stone

Indeed. In conclusion, this is a very important matter. It affects the sovereignty of the House, and therefore it directly affects the interests of our electorate. It is essential that the words that I have proposed should be inserted before the wording in the Lords amendment. I hope we will be able to vote on the matter later this evening.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice 5:00 pm, 21st July 2009

I hope it will be for the convenience of the House, particularly in view of the shortage of time-[Hon. Members: "Whose fault is that?"] I knew that would be said-but as the time is indeed short, for the convenience of the House I shall deal with the recommendation to the House that we accept all the Lords amendments, and why, and also respond as quickly as I can to the points made by Mr. Cash.

Reference has been made to the improvements to the Bill. All three party leaders agreed-I say to Mr. Field -that we should make proposals for a parliamentary standards authority. We had to do so from a standing start-

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I commend the spokesman for the Scottish National party, who, if I may say so at the risk of damaging his political career, played a very constructive part indeed. I am extremely grateful to him, along with his colleagues from Plaid Cymru and the parties in Northern Ireland.

If I may correct myself, the leaders of the three largest parties in the House explicitly committed themselves to establishing a parliamentary standards authority. So, I believe, did the leaders of the other parties. Certainly, all parties co-operated actively in all-party talks, which I chaired with my right hon. and learned Friend the Leader of the House. We had to do that from a standing start. It has been quite the most difficult piece of emergency legislation that I have ever had to deal with over many years, because we started from a blank sheet.

I am not apologetic about the fact that the Bill has been changed on its way through the House. That has been the essence of the parliamentary process both here and in the other place. I would rightly have stood condemned had I sought to resist a series of changes that were urged on us as we pooled our collective wisdom from all sides of the House, at both ends of the building, to achieve a better Bill. We have achieved a very much better measure as a result, and I will take the House briefly through the principal changes.

Photo of Robert Smith Robert Smith Shadow Deputy Leader of the House of Commons, Opposition Whip (Commons)

Reverting to the right hon. Gentleman's opening remarks about the time allowed for this debate, it seems rather sad that yet again, a Bill aimed at the House of Commons had the fundamental work on it done in the House of Lords. We must get the systems in this place right so that we deal effectively with legislation here, rather than relying on the House of Lords.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I agree, as it happens. I hope that the Committee that we agreed last night to set up under the chairmanship of my hon. Friend Dr. Wright will pin that down and ensure that more active time on the Floor of this House is used for legislation.

Photo of George Young George Young Chair, Standards and Privileges Committee

Whose idea was it to restrict this debate to 60 minutes?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

The usual channels. The right hon. Gentleman knows that answer.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

No, I shall proceed. Everyone knows how the arrangements are made.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

On a point of order, Mr. Deputy Speaker. My understanding is that "Erskine May" refers to a programming Committee that should sit and decide, on each Bill, the allocation of time. It seems from what the Justice Secretary has just said that the programme was agreed in some cross-party Front-Bench deal, to the disadvantage of the wider rights of the House. Could you advise the House whether any Committee did sit, whether it should have sat, and what its conclusions were before we were restricted to one hour's debate on a very complex Bill with over 30 amendments from another place?

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

I am not aware whether any Committee has sat, but I rather doubt it. The plain fact of the matter is that it is entirely open to the Government to table a motion. That was done, that motion has been decided, and we are now living with the consequences. Whatever strong feelings there are in the House, we have limited time, and I should try to ensure that such time is used to debate what is on the Order Paper.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

The amendments that were made in the other place are a reflection of the effectiveness of a bicameral system. I wish that there had been more time, but we shall leave it at that, because many of the Lords amendments were made in response to commitments given in the Commons. That is part of the purpose of a bicameral system.

The principal changes-I do not wish to entertain the House by running through all of them-change the way in which the enforcement powers in the Bill would operate. Members will recall that initially the Commissioner responsible for parliamentary investigations would have submitted reports to the Independent Parliamentary Standards Authority, which would have considered them and effectively given directions and recommendations to Members, and made recommendations to the Standards and Privileges Committee. In shorthand, IPSA has now been cut out of that arrangement, so the Commissioner will now report directly to the Standards and Privileges Committee-a much simpler process-except where either the Commissioner judges that a complaint is ill-founded or he or she has reached an accommodation with the Member concerned.

There are new safeguards in the Bill that pick up the recommendations of the Joint Committee on Human Rights. As for the offences, Members will recall that when the Bill left the House, there were three offences: paid advocacy; failure to register an interest; and making a false declaration. As a result of concerns about parliamentary privilege, I agreed that we would drop the provision on paid advocacy, which is covered by the proposed new offence of bribery in the draft Bribery Bill.

There were considerable concerns about the provision on the failure to register an interest. My noble Friend Baroness Scotland spelt out the fact that there is a difference-as indeed there is-between the offence of making a false declaration and the more severe offence in section 2 of the Fraud Act 2006. She pointed out that there are plenty of parallels for the offence, including offences in social security legislation under the European Communities Act 1972 and offences under the Scotland Act and the Government of Wales Act. That provision therefore remains in the Bill. Some other amendments have been made, including one in response to a recommendation from my hon. Friend Mark Durkan, to ensure that IPSA provides MPs with general guidance about taxation issues.

Photo of Angus Robertson Angus Robertson Shadow SNP Spokesperson (Defence), Shadow SNP Spokesperson (Foreign and Commonwealth Office), Shadow SNP Westminster Group Leader

When the Justice Secretary began the process of discussions with all the parties, which I very much welcomed, he argued that it was important to have four offences in the Bill, but in the final stage we are left with one. What kind of message does he think that sends the public? At the start he thought that it was important to have tough sanctions against parliamentarians who broke the rules, but we are now left with just one offence.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I do not accept that the sanctions are not tough-but there is the issue of how that is achieved. As for the paid advocacy, or "cash for questions", offence, the Bribery Bill proposals, which I commend, and which include a carve-out on article 9 of the Bill of Rights-proposals that have yet to go through the House formally, but which have received approbation from Members on both sides of the House-will do that job.

There was controversy about the other two offences. Speaking for Members on both sides of the House-and it was I who urged one of the offences on the House-this was not a question of people going soft. It was about deciding what was the appropriate mechanism. The provision on making a false declaration remains in the Bill.

The final Lords amendment to which I wish to draw attention is the so-called sunset clause, which provides not that the Bill would automatically cease to have effect after two years, but that after two years, if clauses 5 to 9 of the Bill that left the Commons were to continue, they would have to be extended by an affirmative order, which would give the House a chance to draw breath and review the operation of the authority after, in practice, it has been in force for at least a year.

Now let me deal briefly with the proposal by the hon. Member for Stone, which would add at line 3:

"Notwithstanding any provision of the European Communities Act 1972, the European Convention of Human Rights or the Human Rights Act 1998".

I urge Members who support that amendment to reflect on the matter and not to put it to a vote. If they do, I urge the House to vote against it. The arguments against the suggestion in the amendment were well spelt out by Members from all parts of the House of Lords yesterday. There are two aspects to this: whether it is necessary, and if it is, whether it is possible to exclude the operation of, first, the European Court of Justice in respect of the European Union, and secondly, the European convention on human rights, as regards this authority and this House.

On the EU and its institutions, my noble Friend the Attorney-General said that she did not believe that the Bill had any effect on matters within the jurisdiction of the European Court of Justice, and she spelt out why. I think that it was Mr. Heathcoat-Amory who said that the Attorney-General also used the words, "it is very unlikely," but as we are talking about the future, I must say that very few things are absolutely certain. I would, however, make a very large wager, which I am very happy to take in public as well as in private, that the prospect, first, of British judges in a British court deciding to refer to the ECJ is-

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

Remote, says Mr. Grieve. If they did, the prospect of the ECJ taking on that jurisdiction is doubly remote. I hope that that provides some reassurance.

Photo of Bernard Jenkin Bernard Jenkin Conservative, North Essex

There is no doubt that the charter of fundamental rights, if incorporated into the treaties, would create all kinds of legal apparatus in the European Union which would overlap with the matters in the Bill-and, indeed, with parliamentary privilege. Article 234 of the charter states unequivocally:

"Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice."

There is no question of there being a choice for the national court; there is an obligation on it to refer the case to the European Court of Justice. And, it is no good pretending that those matters in the charter of fundamental rights have nothing to do with free speech, because that is there, in the charter.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

Mr. Deputy Speaker, you would not appreciate a discussion on the finer points of the Lisbon treaty just now, but I do not accept the hon. Gentleman's analysis, not least because of the horizontal clauses in the Lisbon treaty.

Photo of Philip Davies Philip Davies Conservative, Shipley

Will the right hon. Gentleman give way?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

No. I am sorry, but I need to make progress.

On the second point, about the jurisdiction of the European Court of Human Rights, Lord Jenkin of Roding said:

"As these"-

ECHR matters-

"concern the international obligations of the UK...we could not simply assert our own constitutional arrangements as a conclusive answer."-[ Hansard, House of Lords, 20 July 2009; Vol. 712, c. 1419.]

That is absolutely right. Indeed, the hon. and learned Member for Beaconsfield made exactly the same point on an intervention, when he said that such an amendment, even if it were introduced into law, could not be binding or have any impact. That is because both obligations arise in international law, under treaties that we have signed up to.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

No, I am going to stop there.

It is open to us as a sovereign Parliament to denounce our subscription to both treaties or to either treaty, in which case we would no longer have the burdens and obligations of either the European Union or the European convention on human rights. If we wanted to do that, that would be the appropriate thing to do-but in the absence of that, certain consequences follow from international treaty obligations, and, no matter what is in the amendment, those obligations would operate. In any event, however, I warrant that the European Court of Justice would not take up any jurisdiction.

On the European Court of Human Rights, although there is no way in which one can stop an individual petitioner petitioning the ECHR in Strasbourg, there would not be an issue. The hon. Member for Stone is wrong to say that the matter is about a reference being made by a court. Our courts do not make references to Strasbourg; individuals put forward petitions against the UK Government. As we know from the 2003 case of A v. United Kingdom, the prospects of such a reference then being entertained are limited to the point of zero. I urge the hon. Member for Stone to withdraw the amendment. If he does not, I urge the House to vote against it.

Photo of Alan Duncan Alan Duncan Shadow Leader of the House of Commons 5:15 pm, 21st July 2009

We are asked to consider the amendments made in another place. May I say at the outset, before I go through some of the detail, that we on the Conservative Benches broadly support the amendments that the Lords have made to the Bill? Most have been the subject of vigorous debate and negotiation.

Just over a week ago, the Bill arrived in the House in a state of some confusion. It was immediately clear that the Government were trying to do too much in too short a space of time. As I explained in my Second Reading speech, which I will not rehearse again now, it was obvious that Ministers had been required, at very short notice, to create a Bill that had-initially, at least-to match the Prime Minister's press release, no matter what the consequences. It quickly became apparent that those consequences would have had a devastating impact on the House and the ability of its Members to go about their business freely and without being trammelled by the judgment of the courts. That was not just our opinion, but that of the Justice Committee, the Joint Committee on Human Rights and the Clerk of the House.

So we are pleased that the Government have made some significant concessions, both in this House and another place, that have ensured that we have, in large part at least, avoided a full-on constitutional collision with the judiciary. We have now achieved most of what it was ever necessary to achieve in the interim, before Sir Christopher Kelly's committee reports in October-that is, the establishment of an independent fees office that will set and administer our allowances and expenses and provide an independent mechanism to investigate any alleged misuse of those allowances and expenses.

I now turn to the amendment to Lords amendment 1 tabled by my hon. Friend Mr. Cash. We appreciate what my hon. Friend is trying to do. The House will note that a stipulation is already laid down in Lords amendment 1, which explicitly states that the issue of parliamentary privilege will remain unchanged by the Bill. The House will also note the powerful points made by the Attorney-General in her letter to their lordships and her speech to the upper House on Report.

It would be impossible to exclude the European Court of Human Rights from the Bill, because we have an international treaty obligation not to do so. However, an ECHR judgment has no real power in this country because, as my hon. and learned Friend Mr. Grieve has consistently pointed out, it is not enforceable as such in our courts. If the Government felt obliged to adhere to whatever judgment the ECHR had made, they would have to go through the painful route of introducing primary legislation. I should register my doubt that amending the Bill to exclude the Human Rights Act would have any effect at all, given Lords amendment 1.

However, despite all that, the intention behind the amendment tabled by my hon. Friend the Member for Stone is completely clear. It is reasonable, given the concern registered and the number of colleagues who signed up to the amendment, that Conservative Front Benchers should support it. As this final concession will not have any negative impact on the Bill, I urge the Government to give it to us and join us in the Lobby.

Photo of Bernard Jenkin Bernard Jenkin Conservative, North Essex

Will my hon. Friend recall the words of the Justice Secretary? He said that he was prepared to wager that nothing arising from the Bill would go in front of the European Court of Justice. Are we to make the foundations of our constitution depend on a wager made by the Justice Secretary? Why do we not just put in place the belt and braces that we need?

Photo of Alan Duncan Alan Duncan Shadow Leader of the House of Commons

At the risk of annoying the House, I shall put €10 on it now.

I am pleased that the Government accepted Lords amendment 1, a Conservative amendment that categorically states that the issue of parliamentary privilege will remain unchanged in the Bill. The original Bill would have succeeded in unravelling, in just a few days, fundamental rights that have been at the foundation of our democracy for centuries. Although the Justice Secretary held to a remarkably calm and sanguine view of the impact that the Bill would have had on the proceedings of Parliament, great anxiety-even alarm-was expressed by the Clerk of the House, by two Select Committees of this House and by many hon. Members on the Floor of this House, as well as by a great number of Lords and Ladies, and their Committee in another place, who thought it best, given the nature of this concern, to ensure that there was an explicit warning to the courts that there was nothing here for them. We agree, and we are glad that the Government have acquiesced.

On Lords amendment 2, we are pleased that the Government have agreed that nothing in the Bill should affect the House of Lords. We entirely support the intention behind the amendment to ensure that if the House of Lords wishes to establish a similar body it can do so, perhaps with the wisdom of our experience behind it.

As regards IPSA and the commissioner, I will not go through every amendment in detail, but I will touch on each clause to see exactly where we have ended up. There have been very few changes to the fundamental restructuring established by the Bill, for under clauses 1 to 4 IPSA will essentially set the allowances regime, pay salaries and allowances, design our code of conduct on financial interests, administer the register of financial interests and establish procedures for investigations. The Lords have also untangled the dual roles of the Parliamentary Commissioner for Standards and the Commissioner for Parliamentary Investigations. The Government have made the commitment that the existing non-statutory role currently undertaken by John Lyon will remain, responsible to the Committee on Standards and Privileges, in addition to the new statutory Commissioner for Parliamentary Investigations.

However, the commissioner's role will be separate from IPSA, so there is now nothing in the Bill suggests that the new body functions both as judge and jury, and that is surely a sensible approach. The commissioner will investigate complaints of any breaches or misuse of the expenses and allowances regime or the rules on the registration of interests. He will then refer his findings, as appropriate, to the Committee on Standards and Privileges, if the matter has not already been settled by repayment. He will receive any relevant information from Members and report any non-co-operation to the Committee. He will also give Members the right to make representations, to be heard in person, and to call and examine witnesses. In addition, the Government have removed two offences: first, on the registration of financial interests; and secondly, on paid advocacy. Those are covered elsewhere in law.

We are very pleased to have a sunset clause. Any legislation that is put through so quickly, and from a standing start, will benefit well from revision and reassessment at a set date in the future. On clauses 5 to 9, the Government have accepted our argument on the need for such a two-year sunset. We understood the argument that the Justice Secretary made to this House on the potential damage that an overall sunset clause would have had on IPSA's ability to get itself up and running and to recruit and retain staff.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

The Leader of the Opposition has announced a quango hunt. Has my hon. Friend noticed that the sections of the Bill that are largely untouched are the schedules setting out Crown appointments, pensions and pay with regard to the new quango? Has he any idea of the additional costs to the public purse? If it turns out that the new commissioner's duties can be adequately undertaken by the existing Parliamentary Commissioner for Standards, will he keep the new body on the quango-hunt list, at least provisionally?

Photo of Alan Duncan Alan Duncan Shadow Leader of the House of Commons

Thanks to our hard work, my right hon. Friend will be able to advance all those arguments when the sunset clause is triggered in about two years' time. He may well find that he has some very good arguments.

Photo of Bill Cash Bill Cash Conservative, Stone

My hon. Friend referred to what I was trying to do. I simply make the point that the "notwithstanding" provision is in line with the metric martyrs' case and Lord Denning's judgments, both of which raise the question of whether, under our laws, we preserve our parliamentary system. It is vital for us to understand that.

Photo of Alan Duncan Alan Duncan Shadow Leader of the House of Commons

I understand my hon. Friend's point, which he has made strongly. I sense that he wishes to push his amendment to a Division shortly.

We should all face up to the fact that the Bill is essentially a panic measure. The Government have been forced to make it up as they go along. Even before the ink is dry it is not perceived, in the eyes of many, as a permanent solution. One of the great remaining problems is that the various elements that make up a Member's remuneration are assessed in an utterly fragmented way. The authority will consider only expenses and allowances. There is a pressing need for some structure or system that can examine pay, pensions, allowances and expenses as one, so that the House does not have to suffer being chewed in different places at different times, as we have been in the past few weeks.

However, a greater problem is already on the radar. It appears as though a collision is looming between the Independent Parliamentary Standards Authority and the Committee on Standards in Public Life. Sir Christopher Kelly would appear to have been angered by the origin and the passage of the Bill. The battle lines already seem to be drawn between the Bill and the Kelly committee, which is studying so much of what we do.

Sir Christopher Kelly has said that he views IPSA as a transitional arrangement, against which he may come out strongly in his report in October. Far from being a great, lasting solution to a deep problem that has hit us all in the past few months, it now appears that we should be prepared for a substantial showdown between the new body that we are establishing to set and administer our expenses, and the old body that we set up to advise on them.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

Does the hon. Gentleman acknowledge the point, which I made to Sir Christopher and his colleagues when I gave evidence to his committee last week, that his committee called for entirely independent setting and administration of allowances-and pay-and for having those arrangements well established before the election? As I explained to Sir Christopher and his colleagues, unless we put the legislation through now, there is no way we could have the arrangements in place and settled before the next election.

Photo of Alan Duncan Alan Duncan Shadow Leader of the House of Commons

In the Secretary of State's intervention we see the seeds of the very confrontation that Sir Christopher Kelly has-if not predicted-at least suggested that he would have a view on. We would all like a solution to the way in which we are paid and the way in which our expenses are administered, so that all of us, with our honourable differences, can get on with our job of being politicians. In a few months' time, this Bill may or may not turn out to be a good start to that end. We must wait and see. In the meantime, we accept the amendments that were made in another place, and we want to press on.

Photo of David Heath David Heath Shadow Leader of the House of Commons

May I first concur with the views of my hon. Friend Sir Robert Smith? It is ridiculous that so few Members will have the opportunity to speak about the Bill, which was so markedly changed in another place and affects every Member. It is simply not right.

Photo of David Heath David Heath Shadow Leader of the House of Commons

It is not my fault that there are 12 minutes left-I wish it were otherwise.

The Bill initially had clear and admirable intentions. It was supported by the leaders of all the parties represented in the House as an urgent and necessary measure. It was then inflated to an unsustainable extent, and we went from a proposed parliamentary standards Act to an amazing vanishing act as provisions disappeared in the face of strong arguments adduced by the Joint Committee on Human Rights, the Procedure Committee and many others, which looked at the matter and perceived the many difficulties. Essentially, we now have a Bill to set up the Independent Parliamentary Standards Authority-IPSA is "facta" as a result of the Bill, but very little else is.

The Bill is emergency legislation. It does a key thing that Parliament has willed shall happen. In doing so, the Bill has stepped on the toes of parliamentary privilege to an unacceptable degree. That aspect has been improved by amendment in another place, but I very much regret the fact that we do not have a proper sunset clause, because it is right that Parliament should re-examine the legislation in the near future, for all the reasons that have been set out previously. That should be done on the Floor of the House, not in a Statutory Instrument Committee. Alan Duncan said that his right hon. Friend Mr. Heathcoat-Amory could say something about the deficiencies of the legislation when the sunset clause came up, but unless he is selected to appear on the Statutory Instrument Committee, he will have no such opportunity. That is regrettable. A proper sunset clause should have been included in the Bill.

Let me deal with the three offences that were originally intended under the legislation. I have a difficulty with what is proposed, because- [ Interruption. ] The hon. Member for Rutland and Melton is saying something from a sedentary position that I must allow him to say in public.

Photo of Alan Duncan Alan Duncan Shadow Leader of the House of Commons 5:30 pm, 21st July 2009

Is it not the case that the hon. Gentleman's party voted against a full sunset clause-or at least argued against one-in another place?

Photo of David Heath David Heath Shadow Leader of the House of Commons

The hon. Gentleman needs to look at Lords Hansard from yesterday, where he will find the amendment from my noble Friend Lord Tyler that precisely said that a sunset clause should come into effect after two years to deal with the clauses in question. The hon. Gentleman will find that my party supported that, while his did not. If he wishes to argue that case, I hope that he will read Lords Hansard. [ Interruption. ] He had better have a look before making another intervention.

Let me deal with the specific offences dealt with by the Bill. I am in some difficultly, because there are already clear offences on the statute book covered by the Theft Act 1968, the Fraud Act 2006 and the common-law offence of misconduct in public office. I accept that they are all English laws and do not apply in Scotland, but they are the laws that should be applied. The difficulty with creating laws that are specific to Members of Parliament is that it reduces the scope of those offences and provides a lower tariff than would otherwise be the case. The one offence that is left in the Bill as a result of the amendments in another place provides for a much lower tariff than the cognate offences in the Theft Act and Fraud Act. The other difficulty is that the offence in question does not require proof of either dishonesty or material gain, so it is almost an arbitrary offence.

There was a case for having a range of offences-the range of offences that we discussed earlier in connection with paid advocacy, which I accept may be covered by the draft bribery Bill or the offence of false registration. To reduce that range of offences to a single offence that is clearly covered by other offences that carry a higher tariff poses some questions. However, that is something that we can re-examine when the provisions come back.

Let me finish by addressing the issue raised by Mr. Cash. I always listen with enormous care to what he says on such matters, because I know how well he researches his facts and I know the care with which he presents his case. I am pleased that we now have a clear declaratory statement about article 9 of the Bill of Rights 1689. I have looked carefully at his arguments for extending it in words to the European Court of Justice and the European Court of Human Rights, but I am afraid that I simply cannot see doing that anything other than otiose, nor can I find the circumstances in which it will make a difference.

As has been said, the European Court of Human Rights is a matter of international treaty. It is the right of any individual to make an application to the Strasbourg court, and nothing that we write into our statutes will prevent that from happening, unless we decide to withdraw from our treaty obligations. Therefore, the proposal will not affect that right. Indeed, in the case to which attention has already been drawn-A. v. United Kingdom of 2003-it is clear that the Strasbourg Court very much had regard for article 9 of the Bill of Rights, despite the fact that the Court is not bound by it, in the strong majority decision that was made. I cannot envisage any circumstances in which a British court would refer a matter to the European Court of Justice in this regard. If anyone could provide a clear case in which the measure might be appropriate, I would support the hon. Member for Stone's amendment.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I am sorry, but I do not have time to take an intervention. Other people still wish to speak, and we simply do not have enough time.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I cannot see any such circumstances; nor could the Attorney-General, according to her very full statement in the other place, and nor could other noble and learned Members of the other place whose opinions I trust. I therefore conclude that I cannot envisage circumstances in which the extra wording would be operative, and if it cannot be operative, it is not appropriate to insert it into the Bill. I support the Lords amendments in their generality, and I hope that the Bill will now make progress this afternoon.

Photo of Stuart Bell Stuart Bell Second Church Estates Commissioner

I will be brief, Mr. Deputy Speaker. First, I would like to render the House's significant approbation for the work of the Clerk of the House, Dr. Malcolm Jack, and of Mr. Robert Rogers in dealing with the privilege question. They were aided and abetted by Sir George Young and others. The Bill, with the amendments before us, will end the cosy relationship between the Fees Office and the Members of Parliament-notwithstanding the sterling work that the staff of the Fees Office have done over the years. It should be placed on record that the Justice Secretary and the Deputy Leader of the House have shown extraordinary patience and forbearance in this matter, and started from scratch, as my right hon. Friend said. As we are celebrating the first landing on the moon 40 years ago, it seems appropriate to say that this might be one small step for Parliament, but it should be a more important step towards restoring public confidence in the institution of Parliament.

Photo of George Young George Young Chair, Standards and Privileges Committee

In the very short time left, I want to have a final go at amending the Bill. I invite the Government not to press Lords amendment 12 to a vote. The amendment is a big mistake. It would remove the right of IPSA to refer a matter to the commissioner. The notes that the Government have circulated on the amendments state:

"This is consequential on the IPSA ceasing to have a role in considering whether to give a direction or make a recommendation in consequence of an investigation by the Commissioner."

It is no such thing; this is an entirely free-standing proposal. The amendment represents a backward step. If we pass it, IPSA will be unable to pass any evidence of wrongdoing to the commissioner for investigation. It cannot be right for the House to proceed with Lords amendment 12.

There are other issues that I would have liked to explore, had more time been available. I want to protest that this is simply no way in which to handle constitutional legislation. When we debated the Bill before it went to the other place, we did not complete our consideration of all the clauses. It then had three days in the other place, but at least there were gaps between those three days, in which Members of the other place could reflect on the proposals and Ministers could make helpful suggestions. The Bill has now come back to us. The Lords did not mean us simply to take it or leave it, yet all these disparate amendments have been lumped together. Anyone who wants to vote against Lords amendment 12, as I do, will have no opportunity to do so, because of the way in which the motion has been framed.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

Does not the right hon. Gentleman's point about Lords amendment 12 also apply to a number of the other amendments? Their net effect will be that we shall end up with an IPSA with less independence and less authority, and which will be concerned with fewer and lower standards.

Photo of George Young George Young Chair, Standards and Privileges Committee

If there were more time, the hon. Gentleman would have an opportunity to make his case-

Photo of Patrick Cormack Patrick Cormack Chair, Northern Ireland Affairs Committee

On a point of order, Mr. Deputy Speaker. I apologise to my right hon. Friend Sir George Young for interrupting him. This is such a parliamentary farce. We have had just one hour in which to discuss all these important issues, and my right hon. Friend has just touched on a very important one. Would you be kind enough, Sir, to discuss with Mr. Speaker the way in which this Bill has gone through the House? He told us all that he was anxious for Parliament to regain its sovereignty, so would you, Mr. Deputy Speaker, be kind enough to ask him to look at the statements that he made just four weeks ago and compare and contrast them with the way in which the Government have treated this House over this supremely important Bill?

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

I am sure that Mr. Speaker will take account of what has been said in this debate.

Photo of George Young George Young Chair, Standards and Privileges Committee

Whatever peroration I may have been preparing-

Debate interrupted (Programme Order, this day)

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83 F ) , That amendment (a) to Lords amendment 1 be made.

The House divided: Ayes 82, Noes 276.

Division number 208 Bills Presented — Bill of Rights

Aye: 82 MPs

No: 277 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order 83F).

Motion made, and Question put, That this House agrees with Lords amendment 1.-( Mr. Straw).

Question agreed to.

Remaining Lords amendments agreed to.