Parliamentary Standards Bill

My Lords, in discussing the new clause in my name we are also discussing the subsequent new clause. I begin by saying how pleased we are to see the noble and learned Baroness the Attorney-General in her place. We are very grateful that she will be able to give us the benefit of her advice. We have had a long letter from her comparatively recently, but of course it is not on the record. We look forward to hearing what the Attorney-General has to say—no doubt in many cases repeating what is in the letter—because what she says will then be on the record. The House will recognise that these two new clauses are exactly the same as those we debated in Committee last Thursday. I have retabled them partly because, in a very important speech, my noble and learned friend Lord Mackay of Clashfern gave his view that European Union law is unlikely to apply to the procedures in the Bill. He added that, ""one can never be sure".—[Official Report, 16/7/09; col. 1302.]" Indeed, that is advice that I have had from other sources, and to which I will refer in a moment. My main purpose here is to give the noble and learned Baroness the Attorney-General the opportunity to give the House her authoritative opinion. Even my noble and learned friend Lord Mackay said that this view was "subject to correction" by the Attorney-General. I suspect that there will not be much correction because both noble and learned Lords are extremely knowledgeable. The House will be relieved to know that I do not intend to repeat at length what I said in Committee. I know that the noble and learned Baroness has had that drawn to her attention; she deals with it in her letter. Perhaps I can summarise the argument in this way. There are two avenues whereby one might find that Clause 1 of the Bill, as it is now, might be called into question by a European court. I deal first with the question of the European Court of Justice in Luxembourg. Let us suppose that a disgruntled citizen, upset by a proceeding that comes from IPSA, the commissioner or the Committee on Standards and Privileges in the other place, tries to raise the issue by judicial review in court here. That court will then have to decide whether it is covered by Article IX of the Bill of Rights. That, indeed, is something that the court must do. The noble and learned Baroness the Attorney-General made that very clear in a report that she sent to the Leader of the House in another place. I do not think I need to quote it because it is well established. Suppose that the UK court then decides that the case falls on the privilege side of the line which divides cases that are within Article IX from those that are not, and therefore declines to hear the case. Suppose that our disgruntled citizen—who must be very disgruntled by this stage—then decides to go to the European Court of Justice in Luxembourg. He cites some provision of EU law—which is obviously an enormously important part of the case if it is going to be established—that might be relevant to his case and asks that court to invoke Article 234 of the treaty. Again, I do not think I need to quote that; it is all in Hansard. Article 234 requires that if such a case comes before the ECJ, that court can ask the UK court to refer the matter to it for review. That seems to me, prima facie, to give jurisdiction to the European Court of Justice to, as it were, "call in" the court. When I raised this previously, the noble Baroness, Lady Royall, dealt with it very firmly. I quote her from Hansard of 16 July at col. 1304. She said: ""A UK court must refer questions of the interpretation of EU law to the ECJ when it considers it necessary, but this is entirely distinct from questions relating to Article IX of the Bill of Rights"." She continued: ""The wider question of whether the Bill of Rights prevents any international court looking at proceedings in Parliament is a separate issue".—[Official Report, 16/7/09; col. 1304.]" I am not quite sure what the basis is for saying that the issue is entirely distinct from Article IX. When she said that it was a separate issue, she was, I think, referring to the second avenue, which could be the European Court of Human Rights. I return for a moment to the hypothetical case which I postulated. The applicability of the Bill of Rights has to be right at the centre of the issue before the national court, and so must be relevant to the case before European Court of Justice. If there is an issue of EU law—and I entirely accept that that is a precondition for this process to be applied—it seems that in those circumstances the European Court of Justice would have to apply itself to an issue relating to Article IX of the Bill of Rights. This of course follows the acceptance by the Government of what is now Clause 1, which makes it absolutely clear that nothing in the Bill affects the Bill of Rights—but that applies only to UK courts, because it is essential to protect the freedom of speech in Parliament from interference by the courts. However, this issue that might, in certain circumstances, be called before the European Court of Justice. With the greatest respect to the Leader of the House—I do respect her; she has handled the Bill with great skill and has made many concessions to the views expressed in all parts of the House—I do not think that she really answered that question. Although my noble and learned friend Lord Mackay thought that such a case could not come before the European Court of Justice, and that, as he put it, it was, ""unlikely to apply to these procedures"," he added, ""although one can never be sure".—[Official Report, 16/7/09; col. 1302.]" I received exactly the same advice from another legal source who I consulted between then and now. That source states, in almost exactly the same words: ""It seems rather unlikely that the IPSA Bill"—" I think that he is referring to the Bill— ""would be an instance of the UK implementing union law. But again, one cannot offer a guarantee as to future judicial interpretation by the EC"." Although such circumstances may be unlikely, the evidence that I have been given so far suggests that they are unlikely but not impossible. Since then we have received the long letter from the noble and learned Baroness the Attorney-General, who made a definite statement, which she will, no doubt, wish to repeat in her reply to this debate. I very much look forward to her speech. However, we must ask her to assure the House that there is no possibility of such an issue arising under this Bill or under any of the procedures in it. If there is doubt, we would be wise to have the protection offered by the new clauses which I have tabled. When we consider the European Court of Human Rights—I have taken further advice on this—we are faced with different issues. First, the court does not have a power to call in, as it were, the case from the domestic court. It is the litigant who takes his case to the ECHR. There is no obligation—there is nothing parallel to Article 234—under that procedure. However, we find there that the ECHR can consider all the merits of the case. If an issue is raised involving Article IX of the Bill of Rights, the court will consider it. I will enlarge on that for a moment. The House will be aware that the ECHR is a convention that imposes general human rights standards, irrespective of their subject. Article 6 of the ECHR is likely to be the issue. It prescribes procedural guarantees for fairness in the determination of any criminal charge or any "civil rights and obligations". My adviser says that it is conceivable that an Article IX point would arise in such ECHR proceedings. As these concern the international obligations of the UK—that is to say, of the executive, judicial and legislative branches of the state—we could not simply assert our own constitutional arrangements as a conclusive answer. That is the advice that I have been given. However, we could expect to be given, ""a wide margin of appreciation"." I am not sure that I understand what that means. It was applied in a very interesting case. I assure noble Lords that I do not intend to read all 77 pages of the judgment. The case of A v The United Kingdom came before the ECHR. I will simply say that it was the "neighbours from hell" case that some noble Lords may remember. The neighbours, having been named in another place, took the case to the European Court of Human Rights. What resulted was detailed consideration—page after page of the majority judgment—arguing whether the Article IX provision in the Bill of Rights overrode the right of the applicant, namely the neighbour who had complained, to have what they regarded as justice. There was a dissenting judgment. The dissenting judge said that Article IX did not override the other conditions. However, the majority of judges in the court found that, on balance, it did. The court considered that the parliamentary immunity enjoyed by the Member of Parliament in the case pursued the legitimate aims that we all support of protecting free speech in Parliament and maintaining the separation of power between the legislature and the judiciary. The judges used this phrase when they ruled that, ""the application of a rule of absolute Parliamentary immunity cannot be said to exceed the margin of appreciation allowed to States in limiting an individual’s right of access to court"." I would be most grateful if the noble and learned Baroness, in her reply, could explain what is meant by "margin of appreciation". I hope that I have established to the satisfaction of the House that it is within the competence of the ECHR to examine whether Article IX applies to a case before it. In the case that I have quoted—I will not read it out to noble Lords, as that would try their patience—there is at least doubt as to whether matters under the Bill could come for judicial review. This would not be by our own courts—Clause 1 removes that possibility—but by the European Court of Human Rights. That is the case that I made in Committee, and the case that I make now. My noble and learned friend Lord Mackay said that he was not sure and that an outcome could not be guaranteed. If there is any doubt left in our minds, the two new clauses that aim to put the matter beyond doubt should be added to the Bill. I beg to move.