Parliamentary Standards Bill

My Lords, it is a particular pleasure to follow the noble Lord, Lord Higgins, because 43 years ago he defeated me when I appeared in the Labour interest in a general election in Worthing—so decisively that it was not necessary to count the votes, one simply weighed them. I agree with the last part of what the noble Lord said, if not the whole. I should declare an interest: I was counsel in the case of Pepper v Hart, dealing with parliamentary privilege, and next week I am in a case where one Secretary of State is trying to use parliamentary privilege to prevent proceedings of this House from being seen by the courts. The way in which the Government have rushed to introduce and propel this hastily cobbled Bill is not how the Executive should use their law-making powers. However, in considering the Bill, we should remember, as the Leader of the House emphasised, that its aim is to deal with the House of Commons, not the House of Lords. We should not filibuster or thwart but seek to improve the Bill as far as we can. I also agree with my noble kinsman, the noble and learned Lord, Lord Woolf, who said that the House must not abdicate its responsibilities but scrutinise and improve the Bill. It is vital for us to work together, across and beyond parties, to increase public confidence in Parliament and politicians and in the fact that in both Houses most of us are, I hope, dedicated to public service. One of the problems that the Bill creates is its impact on the fundamental constitutional principle that statements made in Parliament should be protected by absolute privilege. As has been said, parliamentary privilege is not some fusty, archaic doctrine, and "privilege" is a misnomer. Article IX of the Bill of Rights 1688 serves the dual interests of free speech in Parliament and the separation of powers between Parliament and the courts. It is designed not to protect individual MPs but Parliament itself, although for party-political reasons a squalid exception was made in Section 13 of the Defamation Act 1996, enabling MPs to pick and choose, on the basis of personal self-interest, whether to waive parliamentary privilege or to invoke it as claimant or defendant in libel proceedings. That was, as Lord Simon of Glaisdale pointed out, a constitutional monstrosity, which continues to deface the statute book. Article IX of the Bill of Rights can be taken too far. As I say, I declare an interest as counsel in Pepper v Hart, when I appeared against the then Attorney-General, the noble and learned Lord, Lord Lyell, as he will recall, where an attempt was made by him on behalf of the Commons to prevent the courts from referring to what Ministers had said in Parliament when courts interpret ambiguous legislation. It was claimed that the Commons would strongly object if courts were to use Hansard as an extrinsic aid to statutory interpretation. Other common law countries, including Australia, New Zealand, India and the United States, had done so without any violation of their constitutional protection of speech and debate in their parliaments. The Law Lords rejected this inordinate claim and there has not been any subsequent objection from the other place. More recently, it has even been suggested from Commons advisers that the practice of referring in court to reports of Select Committees, such as the Joint Committee on Human Rights, of which I am a member, in legal proceedings violates the Bill of Rights because it involves the risk that the courts may question proceedings in Parliament. That, too, is an inordinate claim, which would place the courts in blinkers. I am sure that my noble kinsman, the noble and learned Lord, Lord Woolf, would agree, as he has said so in the past as a judge. The courts know when and how to keep off Parliament’s lawns while exercising their vital duty of interpreting the law of the land. There have been important cases where neither the Executive nor the citizen could have had a fair hearing without the benefit of the proceedings of Select Committees when deciding issues of legal public policy and where the courts would have been denied crucial evidence. In the present case, the Clerk of the Commons has explained his perception of the problems of the privilege aspects of the Bill. He is surely right to remind Parliament of the need for a parliamentary privileges Act to implement the recommendations of the Joint Committee on Parliamentary Privilege in 1999, but there is no appetite for one in the Government. I respectfully do not agree with the Commons Clerk’s opposition to what he describes as, ""tinkering with parliamentary privilege on a piecemeal basis"." If that view were taken literally, it would inhibit or even prevent necessary reforms. His concerns about encroachments on parliamentary privilege are real but they go too far. He takes a similarly negative position on the draft bribery Bill, arguing that privilege prevents any use of anything said in Parliament, even to prove that a Member committed the offence of corruption. His memorandum argues in paragraph 19 that admitting evidence of proceedings in Parliament effectively removes the right of free speech. We should look for enlightenment across the Atlantic. Article I, Section 6, of the American Constitution provides, like our own Article IX, that any speech or debate in either House of Congress, ""shall not be questioned in any other place"." This so-called speech and debate clause protects legislators from punitive executive or judicial action and reinforces separation of powers. In the 1970s, the American Supreme Court considered several cases aimed at preventing claims of privilege from going too far. To take one example, which was referred to the Constitution Committee, in a case called the United States v Brewster a former Senator had been indicted for taking a bribe to influence the performance of his official legislative duties. He sought protection under the speech and debate clause to declare the indictment invalid. In upholding the indictment, the Supreme Court ruled: ""Taking a bribe is obviously no part of the legislative process or function"." The clause was read as prohibiting an inquiry into the motivation for performing specific legislative actions. That surely is the common-sense and balanced approach that will be taken by our own courts. I therefore respectfully disagree with the somewhat overprotective approach taken by the Clerk of the Commons. It is important to keep Article IX of the Bill of Rights within proper balance and limits, as our courts and other courts of the Commonwealth and the United States have done in recent times. The human rights problems are at least as important as those about parliamentary privilege. They were examined by the Joint Committee on Parliamentary Privilege in its report 10 years ago. It is lamentable that the Government have failed to give effect to its recommendations, including the repeal of Section 13. The committee was chaired by the noble and learned Lord, Lord Nicholls of Birkenhead. Its members included the noble and learned Lords, Lord Mayhew and Lord Archer, the noble Lord, Lord Waddington, Lord Wigoder, my learned friend Paul Tyler MP, as he then was, and Ann Taylor MP, as she then was—not a bad committee. The committee pointed out in paragraph 280 the importance of ensuring that the procedures followed in the investigation of complaints against MPs should match what it called "contemporary standards of fairness". It set those out in paragraph 281. Those recommendations were endorsed by the Committee on Standards in Public Life in 1992. The Joint Committee on Human Rights then reaffirmed them and the chair of the Joint Committee on Human Rights, Andrew Dismore MP, speaking in the other place on 29 June at cols. 82-7 of the Official Report, made an extremely strong speech in which he explained them fully. Later in the process, the Justice Secretary, the right honourable Jack Straw, indicated, as I mentioned, that he was open-minded about introducing some fairness guarantees. We do not know what advice the Attorney-General has given. That perhaps illustrates the need for Parliament to have its own legal adviser. Perhaps the much delayed constitutional renewal Bill will have to be amended to deal with that. In any event, Ministers must have the committee’s recommendations drawn to their attention as well as its references to Article 6 of the convention and the judgment of the Strasbourg court in the case Demicoli v Malta. As the Select Committee on Parliamentary Privilege observed 10 years ago: ""The existence of this jurisdiction"—" at Strasbourg— ""is a salutary reminder that if the procedures adopted by Parliament when exercising its disciplinary powers are not fair, the proceedings may be challenged by those prejudiced. It is in the interests of Parliament, as well as justice, that Parliament should adopt at least the minimum requirements of fairness"." That applies as much to the functions of IPSA and IPSA’s commissioner as to parliamentary committees. They should have an overriding duty to be manifestly seen to be fair and to ensure fairness in their procedures. There also needs to be a right of appeal, whether through the Judicial Committee of the Privy Council against any determination by IPSA or by the Commons that amounts to the determination of a criminal charge, or a Member’s civil rights and obligations, or through some other body. Having listened to the noble and learned Lord, Lord Woolf, I think that the better path might be to include within the Bill at Committee stage something familiar to those who deal with disciplinary offences against lawyers, doctors or accountants, where a special independent and impartial tribunal is set up under the statute that is able to look at the substance of complaints and allegations, and not merely by way of judicial review. I am not drafting, but if one were to say, "For the purposes of this Act, there is to be a tribunal known as the Parliamentary Standards Tribunal, to have the functions conferred on it by this Act", and, "Members of the House of Commons should have a right of appeal to that tribunal against any determination by IPSA or the House of Commons amounting to the determination of a criminal charge or a Member’s civil rights and obligations, within the meaning of Article 6 of the convention", that would wholly meet the obligations of the United Kingdom that bind Parliament as well as the courts and the Executive. It would avoid the conflict that everyone is rightly worried about between the Queen’s courts on the one hand and Parliament on the other under the doctrine of parliamentary privilege. I respectfully suggest, therefore, that consideration might urgently be given to creating the kind of tribunal that the Prime Minister, as Chancellor, created in the Financial Services and Markets Act 2000 when he set up the Financial Services and Markets Tribunal dealing with disciplinary matters in exactly the way that I have suggested. Those interested in matters north of the border, as I am, will recall that, when recently the Scottish Parliament was dealing with how to discipline naughty solicitors, all these issues were raised and the Scottish Parliament decided to create an independent and impartial special tribunal to deal with disciplinary matters in that way. I shall not now bore the House by commenting on the Explanatory Notes dealing with legal advice about the European convention. However, I should like to point out one rather comical matter. If, in our sad lives, we study the Explanatory Notes in the Commons and the Lords, we find an interesting difference between the two. The Commons version is extremely tentative and walks on eggshells, whereas the Lords version has been firmed up by reference to a French case involving the Conseil d’État. I do not believe in this case that second thoughts were better than first; I have no doubt that the convention would apply. Finally, the Constitution Committee pointed clearly in paragraph 35 of its most recent report—from lunchtime—to the need to create a domestic appellate body that is sufficiently independent and impartial to satisfy the requirements of the convention. If that were done, I would feel much more confident in supporting the Bill.