Parliamentary Standards Bill

I shall speak also to Amendments 51, 64 and 76, which have been grouped. I move this amendment and speak to the others partly as a member of the Joint Committee on Human Rights, drawing upon its report, and partly relying upon the report of the Constitution Committee, which is also dealing with these matters. This amendment and the others in the group are designed to tackle a problem that the Joint Committee on Parliamentary Privilege highlighted a decade ago, which is the problem of ensuring fairness to Members of Parliament, given the system that we operate. Paragraph 13 of the Constitution Committee’s 18th report, under the heading "Supervision by the courts" explains: ""When a new public body or regulatory scheme is to be established, constitutional scrutiny requires there to be careful examination of the proposals to ensure that adequate arrangements have been made for a regulated person to be able to make legal challenges to a decision. This is a practical application of the constitutional principle of the rule of law"." Paragraph 14 states: ""In the context of the present bill, consideration of the principle that a regulated person should have access to a tribunal or court is complicated by the fact that there is a rival constitutional principle of great importance— parliamentary privilege"." Paragraph 15 says: ""For sound constitutional reasons, the courts have historically respected the right of Parliament to govern itself and have refused to be drawn into any disputes that may arise about things said or done in Parliament"." The committee then explains why. Paragraph 26 of this admirable report explains: ""The fact that investigations and other regulatory decisions are now to be placed on a statutory footing (rather than based on a Resolution of the House of Commons) does not, in and of itself, have the consequence that they will in future be judicially reviewable. The courts will determine the extent"." Paragraph 34 says: ""We believe that, as a matter of constitutional principle, decision-making powers of a public authority should be subject to the possibility of an appeal to a different body. We see no justification for denying members such a right of appeal against determinations of the IPSA"." It then refers to the 1998 report of the Joint Committee on Privileges and the Joint Committee on Human Rights, and explains what it sees as the problems. Paragraph 35 refers to the Joint Committee on Human Rights and the earlier committee on the problem of Article 6 of the European Convention on Human Rights, and concludes: ""We recognise that such an appeal would have profound implications for parliamentary privilege if the appellate body were to be a judicial tribunal outwith Parliament"." I apologise for referring to all that, but it is necessary background to explaining what this clutch of amendments is trying to do. I say straightaway that none of them does it wholly successfully. Amendment 49 comes straight out of the Joint Committee on Parliamentary Privilege’s recommendation and sets out in detail what fairness requires when a Member is subject to an investigation or a complaint. Proposed new paragraphs (a) to (f) have been endorsed by the Joint Committee on Human Rights. That is one way of trying to tackle the problem. It is elaborate, but it has the benefit of having been endorsed by two committees—one extremely powerful—in the past. Another way of tackling the problem is set out modestly in Amendment 51, which would insert the word "fair" into the reference to the procedures that are to be agreed. Another way was proposed by the noble and learned Lord, Lord Bingham of Cornhill, to the Joint Committee on Parliamentary Privilege and is set out in Amendment 76; it is a right of appeal by a Member of the House of Commons to the Judicial Committee of the Privy Council. Although the amendment is in my name and that of my noble friend Lord Tyler, it has the disadvantage of the Judicial Committee of the Privy Council being outwith Parliament and therefore gives rise to the problems of parliamentary privilege to which noble Lords have referred. These are all different attempts to find a way of ensuring that Article 6 of the European Convention on Human Rights, which binds the United Kingdom, including Parliament and the other two branches of government, is satisfied in a way that is compatible with our democratic political and legal system. That is the puzzle. I do not think that even the most fanatical person looking at the jurisprudence of the European Court of Human Rights at this hour needs my explanation of why the cases of Demicoli v Malta and Pierre Bloch v France do or do not mean that Article 6 is in play. Let us assume, as did the Joint Committee on Parliamentary Privilege in 1998, that if a Member of Parliament is subjected to really severe disciplinary penalties, that in terms of the convention the MPs’ civil rights and obligations are being determined, or that he or she is being subjected to what is in substance a criminal charge, the requirement of the right to an independent and impartial tribunal is triggered by the convention. I believe that to be the case. More importantly, that view was taken by the Joint Committee on Parliamentary Privilege as a likely outcome where severe sanctions were involved. There is no problem when the Bill creates new criminal offences because such an offence can be tried in the ordinary way by an independent and impartial criminal court, which involves no clash with Article IX of the Bill of Rights. If a Member of Parliament is guilty of a crime in that traditional sense of crime, it is not connected with proceedings in Parliament. Criminal conduct of that kind cannot be regarded as proceedings in Parliament. At Second Reading I mentioned the case of Senator Brewster in the United States. He was a crooked senator who accepted a bribe and tried to argue that Article IX of the Bill of Rights meant that he could not be prosecuted. The Supreme Court threw it out. Clearly, in doing so, it was well versed in our system of government and in the case law on Article IX in this country. There is no problem where we create a crime or where there is a crime. The problem arises in respect of the broader disciplinary powers of the House of Commons in whatever form and by any of the bodies in this Bill or otherwise. It is therefore very important to find a way to ensure fairness for Members of Parliament in a way which complies with the Bill of Rights and Article IX, and with the principles of fairness in the rule of law. Even MPs are entitled to fairness—it seems to me. Perhaps I may hasten to say, as I did at Second Reading—all my attempts are objectionable in one way or another—that the right way forward would be to have a domestic tribunal within the House of Commons set up under statute. Its composition would be judicial but its members would not sit as judges of the Queen’s courts. They would sit as members of a parliamentary standards tribunal. There is nothing strange about that because in lots of legislation, including that for financial services and the regulation of solicitors, doctors or barristers, it is commonplace that serious disciplinary offences, involving for example being struck off or subject to a financial penalty, go to an independent and impartial tribunal. It used to be the Privy Council but it no longer is. In that way, fairness is accorded to members of those professions. We are concerned with fairness to members of the political profession, who are as entitled to fairness, as the Joint Committee on Parliamentary Privilege pointed out. One has a choice. If we decide to do nothing, there will be judicial review proceedings. The Government have already conceded that decisions under this Bill are capable of being judicially reviewed. The proceedings will not satisfy Article 6 because the European Court of Human Rights has made it clear that there has to be a tribunal which can look at the facts and not only the law. It must be able to look at the merits and not just procedure. One has to have a true appeal to a proper tribunal or court in order that Article 6 can be satisfied. It is not good enough to leave it to judicial review, and in any case judicial review suffers from all the problems of Article IX as to the extent to which it is proper for the judicial review court to deal with it. It seems to me that the right way forward is to create a tribunal within the House of Commons that satisfies the requirements of the rule of law and of parliamentary privilege, but keeps it domestic—within the House and not outwith it. No one would question anything in the House in another place. I do not believe it to be beyond the capacity of the Government to devise a tribunal of that kind. I raised this at Second Reading and I am sure that much better brains than mine have been thinking about it ever since. Having said that, I beg to move.