Parliamentary Standards Bill

The hon. and learned Gentleman makes an important point, with which I agree. A subordinate point relates to double jeopardy, which is dealt with under the present arrangements by the commissioner suspending his inquiry pending the outcome of police investigations. Indeed, that has happened in relation to the recent allegations. However, there does not appear to be any provision for such suspension in the new system. Without proper scrutiny of the protocol to ensure that investigations would be suspended pending the termination of criminal proceedings, there would be a risk of double jeopardy. The Joint Committee's report went on to say:""In determining a member's guilt or innocence, the criterion applied at all stages should be at least that the allegation is proved on the balance of probabilities. In the case of more serious charges, a higher standard of proof may be appropriate."" The standard of proof is not mentioned in the Bill either. That could be contrasted with what happens now in inquiries by the commissioner and by the Standards and Privileges Committee, in which a higher standard of proof is applied as the allegation becomes more serious. That is entirely appropriate. Indeed, the Committee on Standards in Public Life subsequently endorsed the view of the Joint Committee on Parliamentary Privilege on that issue. The procedural safeguards in the Bill therefore fall well short of the minimum requirements for fairness identified by the Joint Committee, by the Committee on Standards in Public Life, by article 6 and by the principles of natural justice. They are insufficient to prevent breaches of the right to a fair hearing from occurring in practice. The Government argue that the Bill is compatible with the right to a fair hearing because IPSA is independent. I assume that they are arguing that IPSA itself satisfies the right in article 6(1) of access to an "independent and impartial tribunal" in the determination of civil rights and obligations. However, IPSA is not capable of constituting the sort of "independent and impartial tribunal" to which an individual Member is entitled under article 6(1). Its functions include devising the rules, designing the procedural safeguards—which are now at large—referring for investigation, and various enforcement powers. Such a body is not capable of providing the "independent and impartial tribunal" required by article 6. In his evidence to the Joint Committee on Parliamentary Privilege, Lord Bingham, that great jurist, expressed unease about the lack of access to any independent body—some right of appeal—regarding disciplinary decisions of the House. He said:""I have an inherent unease at a situation in which anyone can be held to have committed what I think you might call a quasi-criminal offence and perhaps subjected to some penalty where there is no means of challenge at all…in the courts."" He went on:""I am always rather uneasy if any decision by anybody, however wise and authoritative, is final and immune from any challenge…it would be desirable to have a route of challenge available…I would not expect the right to be exercised at all often"." In his written evidence to the Committee, he said:""But I can…see force in the argument that the Houses should not be the sole and final arbiter in such matters. There would be scope for undesirable conflict if those aggrieved could resort to the ordinary courts."" He then goes on to make an important recommendation:""But if an issue arose…the Judicial Committee—" of the Privy Council—""would be a very suitable body to rule. Article 6 of the European Convention might have some bearing here."" Without getting too bogged down in the issue of privilege, a decision of the Standards and Privileges Committee could be subject to appeal to the Privy Council, with the House taking the decision in the last eventuality, as is the case now with recommendations from the Standards and Privileges Committee. An appeal level could be added to the process without compromising privilege too much. I therefore agree with Lord Bingham's analysis that both the minimum requirements of procedural fairness and article 6 require access to a truly independent and impartial tribunal, with a limited degree of judicial supervision. Lord Bingham suggested that either House would make its own decision in the first instance, and that any party who did not accept that decision would have a right to petition the Judicial Committee of the Privy Council by way of challenge. The right of appeal would be similar to that which already exists against disciplinary decisions of professional bodies such as the General Medical Council, where the right of appeal is to the Privy Council. Why should we be any worse off than a doctor who faces severe disciplinary consequences that could jeopardise his professional future? The Privy Council is expert at ensuring that that right of appeal is only used sparingly, and that is the way forward. Under the law, UK courts have no jurisdiction to entertain complaints of breaches of convention rights by either House or a person exercising functions in connection with proceedings in Parliament. As I said in an intervention, the effect of section 6(3) of the Human Rights Act 1998 is that Parliament is not a public authority for the purposes of domestic claims under that Act. Although proceedings for breach of article 6 are excluded by the Human Rights Act from the jurisdiction of the UK courts, in so far as they relate to Parliament, they remain within the jurisdiction of the European Court of Human Rights in Strasbourg. If the Bill is enacted in its present form, it is only a matter of time before Strasbourg makes a finding of a violation of a Member's right to a fair hearing under article 6(1). I welcome the move from the old system of self-regulation to independent statutory regulation as one that, in principle, is not only likely to enhance public confidence in Parliament, but has the potential to improve the fairness of the treatment of individual Members. However, the Bill as currently drafted is incompatible with the right to a fair hearing under article 6 and at common law as far as the principles of natural justice are concerned. To render the Bill compatible, it needs to be amended in at least two ways. First, it should at least have inserted into it the minimum requirements of fairness identified by the Joint Committee on Parliamentary Privilege in its 1999 report and endorsed by the Committee on Standards in Public Life in 2002. Secondly, the Bill's acceptance of independent regulation should be extended by providing a right of appeal to the Judicial Committee of the Privy Council against decisions of both IPSA and the House—in my view, the Committee on Standards and Privileges—that amount to the determination of a criminal charge or of a Member's civil rights. I have tabled two probing new clauses to that effect for the Committee stage, and I look forward to the Government's response. I hope that both will be debated, as it would be a travesty if, under the tight timetable, the guillotine were to prevent discussion of such important principles. To conclude, although I welcome the principles behind the Bill, there is a lot to be done to ensure that Members are treated fairly under it.