Parliamentary Standards Bill

My Lords, the noble Lord is probably right, but in order to explain why that is so we would be here for probably another three or four hours, so I shall resist that blandishment too and say that the Bill as currently structured is at last perfectly formed. In so far as issues arise under the European Convention on Human Rights, as the Joint Committee on Human Rights argues, if the current procedures of both Houses are incompatible with the convention, it would be open to a Member to pursue that, as I have described. I hope that I have gone some way towards reassuring the House and assuaging the concerns about the constitutional nature of this Bill. I shall now pray the indulgence of the House once again to speak to the concerns expressed about the criminal offence in Clause 8(1). I will not comment on the offences that have, as it were, fallen by the wayside in your Lordships’ House except to say that they were certainly in my view legally defensible. However, as they are now of academic interest, at least for the time being, I shall not seek to defend them today. The elements of the offence in Clause 8(1) are making a statement in support of a claim under the MPs’ allowances scheme knowing it to be false or misleading in a material particular. The maximum penalty is 12 months’ imprisonment. It may be tried summarily or on indictment. Offences consisting of knowingly making false statements exist in many contexts where Parliament agrees that there is a need for complete frankness. Examples include applications for passports, driving licences and social security benefits, and statements to company auditors and financial regulators. The Government believe that, in order to restore trust in the integrity of MPs and the system under which they receive public money, it is necessary to make it explicit that MPs, too, should be under a duty of candour. There is nothing wrong in principle about an offence that applies only to Members of the House of Commons. The other offences, formerly to be found in Clause 8, were paralleled by offences in the Scotland Act and the Government of Wales Act, which were created by this Parliament. They apply only to Members of the Scottish Parliament and the National Assembly for Wales respectively. As my noble friend the Leader of the House explained in Committee, the new offence is not the same as the more serious offences in Section 2 of the Fraud Act 2006 or Section 17 of the Theft Act 1968. Both those offences require proof of dishonesty and of the purpose of making a financial gain, with maximum sentences of 10 and seven years respectively. As noble Lords know, the Fraud Act was the result of a Law Commission report that recommended that proof of dishonesty should be required in addition to the other elements of the offence that it created as the essence of a serious offence of deception. I am sure that noble Lords will understand that it would not be appropriate for me to give specific examples of behaviour that might be caught by the new offence but not by the existing more serious offences. In general terms, it may be that dishonesty or an intention to make a financial gain will not be established if a claimant believed that they had an entitlement to the sum claimed; or that the person from whom it was claimed consented to pay it; or that the money would be set off against another entitlement; or that there was an intention to repay it. Proof of all the elements of the offence, including dishonesty and intent to make a financial gain by the false statement, is for the prosecution to establish beyond reasonable doubt. There is a clear analogy with offences in relation to social security benefits. The summary offence in Section 112 of the Social Security Administration Act 1992 requires proof only that a false representation was knowingly made in a claim for benefits, and the maximum penalty is three months’ imprisonment. That Act also contains in Section 111A(1) the more serious offence of dishonestly making a false representation for the purpose of obtaining a benefit payment; that offence carries a maximum penalty of seven years’ imprisonment. The case law referred to in my letter illustrates that the requirements to prove dishonesty and the purpose for which a false statement is made do indeed make a difference in real cases. I turn now to the concern raised by the noble and learned Lord, Lord Mackay of Clashfern, that if there were a lesser offence relating to MPs, prosecutors might be inhibited from charging the more serious offence even when the circumstances warranted it. It must be absolutely right that Members of Parliament are subject to the ordinary criminal law and it is no part of the Government’s intention to give preferential treatment to MPs or to create a carve-out from the offence in Section 2 of the Fraud Act for Members of Parliament. Selection of the appropriate offence within a hierarchy of potential charges is an important part of the prosecutor’s role. The guidance to the Crown Prosecution Service issued by the Director of Public Prosecutions makes it clear that the selection of charges must reflect the seriousness and extent of the offending, giving the court adequate powers to sentence and enable the case to be presented in a clear and simple way. In addition, the guidance on Section 2 of the Fraud Act already alerts prosecutors to other offences that may be considered, including false accounting and various false statement offences. The new offence criminalises conduct that on its own is not currently an offence. If there is evidence of dishonesty and an intention to make a gain, the prosecuting authorities will, as now, have the option of prosecuting for the more serious offences of fraud or false accounting, just as those responsible for ensuring the integrity of the social security system have the option of prosecuting for the more serious offence in Section 111A of the 1992 Act where dishonesty can be established. There are no grounds for saying that this Bill gives Members of Parliament preferential treatment by comparison with their constituents. On the contrary, for the first time it places them under a similar obligation to tell the truth in claims and creates a sanction should they fail to do so. A number of us listened carefully to the words of the public when it was said, "If I had made this claim on a benefit form, I would have been prosecuted". It puts MPs in a similar position when making a declaration; if they do so within the meaning of this offence, they, too, will be subject to similar rigour. I hope that I made it clear in my letter this morning and in what I have said in response to the amendment—I know that my noble friend the Leader of the House has made it clear—that it is not the Government’s intention, in bringing forward the offence in Clause 8(1), to see Members of Parliament in the criminal courts. Rather, it is to make it as plain as it can be that the duties of honesty and integrity that underpin the codes of conduct of both Houses are not empty words. They entail a positive duty of probity and candour. Members of Parliament should be in no doubt whatever that, once the new allowances scheme is put in place by the Independent Parliamentary Standards Authority under the terms of this Bill, they must not include in any claim under it information that they know to be false or misleading. The Bill neither is unfair to Members of Parliament nor does it give preferential treatment as compared with members of the public. I hope that I have been able to provide at least a measure of reassurance to those who have expressed concerns about the Bill. I believe it to be a necessary part of re-establishing public trust in their elected representatives. I do not believe that it intrudes in any way into the privileges of this House or the other place, or that it affects the delicate balance in our constitution between Parliament and the courts. On that basis, I commend it to your Lordships, in the hope that I have left no stone unturned and that therefore the debate can now conclude.