Previous Section Back to Table of Contents Lords Hansard Home Page

The Earl of Mar and Kellie moved Amendment No. 129B:

Page 10, line 25, leave out ("Standing orders") and insert ("An Act of the Scottish Parliament").

The noble Earl said: Amendment No. 129B deals with the registration of members' interests. It was suggested to me by the Law Society of Scotland. The amendment would ensure that this important public issue of members' interests is dealt with in primary legislation. There needs to be adequate parliamentary scrutiny of the subject, especially in the light of recent allegations. We have heard that the consultative steering group will report in December. The draft standing orders must be made readily available to the public for their scrutiny and peace of mind.

Standing orders strike me as being too easily amended merely by resolution of the parliament. I would prefer that the Scottish parliament put the issue of registration of members' interests into primary legislation. Any changes would then have to be given proper scrutiny prior to amendment. Standing orders seem not to be a suitable vehicle for the regulation of members' interests. Although Clause 22 creates a framework for an offence provision, surprisingly that provision is delegated to standing orders. I say "surprisingly" because it could involve serious offences such as bribery, corruption and fraud. I beg to move.

Lord Hardie: Again, in relation to the noble Earl's amendment, I remind the Committee that Clause 22 has provisions to ensure that the parliament puts in place a framework within which it will regulate members' interests. I am sure that the electorate would expect no less.

Paragraph 9.8 of the White Paper made it clear that there would be minimum requirements, among other things with respect to rules about members' pecuniary interests. I should explain to the Committee that, in common with other parts of the Bill, we are establishing in the legislation basic provisions which will require to be filled out in the standing orders by the parliament itself. I have no doubt that the parliament will take a keen interest in that area and will want to build on best practice. The work which has already been done by the Nolan committee and the continuing activities of the Neill committee and the joint Select Committee on parliamentary privilege will also be pertinent. I am sure it will be of invaluable guidance to the parliament.

The Government recognise the need to keep this matter under review and doubtless the Scottish parliament will also do so. I have already referred to the consultative steering group which will also address the matter.

Amendment No. 129B in the name of the noble Earl would oblige the parliament to put down the detail of rules in respect of members' interests in an Act of the Scottish parliament rather than in standing orders.

We agree absolutely that the issues raised in relation to members' interests are serious ones which deserve to be handled in an appropriately serious manner. I do not, however, agree with the noble Earl that the detail of

16 Jul 1998 : Column 477

those rules needs to be specified in legislation. As I have already explained, in Clause 22, as in other parts of the Bill, we have taken the view that standing orders are the appropriate vehicle for setting out the detailed rules for the internal working of the parliament, with the Bill simply laying down the key issues which those standing orders must cover. Against that background, we believe it would be anomalous to have the detail of the rules relating to members' interests contained instead in primary legislation.

I understand the concerns expressed by the noble Earl, but do not see any particular difficulty with linking the creation of an offence with the breach of the provisions contained in standing orders rather than in an Act of the parliament. I do not think that there is a significant practical distinction. There will be no scope for standing orders to be capricious or unfair. The parliament will clearly need to keep firmly in mind that the standing orders, not only in this case but in general, will need to be rigorously drafted. Members of the Scottish parliament will be entitled to set, and I have no doubt will demand, clear and fair rules. With that explanation, I invite the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie: I thank the noble and learned Lord for his explanation. Those who were advising me encouraged me to think that primary legislation may be more secure. They will read Hansard, as will I, and come to a conclusion in that regard. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 130 and 131 not moved.]

The Earl of Balfour moved Amendment No. 132:

Page 11, line 12, leave out subsection (6).

The noble Lord said: This is a probing amendment. Subsection (6) of Clause 22 states that,

    "Any member of the Parliament who...

    (b) contravenes any provision made in pursuance of subsection (4), is guilty of an offence".

My question is: who will investigate the prosecution? I beg to move.

Lord Mackay of Drumadoon: The amendment moved by my noble friend Lord Balfour and Amendment No. 133 in my name are important amendments dealing with another aspect of the relationship between the new parliament and the courts.

The purpose of these amendments--mine in particular--is to enable the parliament to deal with the behaviour of any of its members who act in breach of the standing orders relating to the registration of their interests or who act contrary to the provisions of Clause 22(4). As the noble and learned Lord the Lord Advocate said a short time ago, it will be important for the Scottish parliament to establish at the outset a need for financial probity on the part of all those who are members of it.

The statutory powers which the new parliament will have under subsection (5) to make standing orders which will allow it to regulate the behaviour of, and to discipline, its members are sufficient. They provide that when any

16 Jul 1998 : Column 478

member fails to comply with or contravenes a standing order, the parliament may withdraw his rights and privileges for the period of his exclusion.

If the courts are involved, far from helping the parliament to achieve the objective of high probity, that may cause difficulties. Any possible prosecution would require to be investigated by the procurator fiscal. No doubt in such cases the procurator fiscal would seek to discharge his duties as an independent prosecutor in as fair and objective a manner as possible. But he will inevitably require to become involved in investigating the behaviour of members of the parliament and possibly some aspects of parliament's conduct of its business in a manner which would occur only unusually in regard to the affairs of either your Lordships' House or another place. That might unavoidably, and certainly unintentionally on the part of the procurator fiscal, lead to some tensions and conflict between his office on the one hand and members of the parliament on the other.

More importantly, any such criminal investigation or criminal proceedings that might follow from it may delay the parliament invoking its own powers contained in standing orders made under Clause 22(5). If any proceedings were commenced, the sub judice rule which the standing orders must contain would ensure that the investigation would require to be put on ice until the criminal proceedings had run their course.

Without mentioning any examples, we are all aware in recent years of allegations in relation to the lack of probity of Members of Parliament and, indeed, members of local authorities. When the parties concerned try to investigate those matters and sometimes discipline the individuals involved, they are delayed while the criminal investigation takes place. Therefore, delay may be inevitable.

Furthermore, if on investigation the procurator fiscal decides that no proceedings are appropriate, were the parliament then to act, there might be perceived to be a difference of approach between the procurator fiscal on the one hand and the parliament on the other. It is perfectly competent for such a difference of approach to arise, but it may nevertheless provoke an element of controversy.

Another situation might be when the member had been prosecuted and convicted. Some people might feel that in that situation, if he had been prosecuted in a criminal court and punished there, it would be wrong for any further punishment to be visited upon him by the parliament, whatever the standing orders might provide. I perceive a further difficulty in these criminal proceedings. They are to be summary criminal proceedings before a sheriff court. If they ever occur, they will occur very rarely. With the best will in the world, it may be difficult for a sheriff trying a case in summary proceedings to get a clear feel as to the gravity or otherwise of what may or may not have been going on.

From time to time members of society are prosecuted for breaching the rules of their profession. Insider dealing by those involved in the financial services industry is one example of that. Some of the more abstruse provisions of the health and safety legislation is another example. Because these cases come along so rarely, and because

16 Jul 1998 : Column 479

they involve actions on the part of those highly experienced in areas of society where people may not have an in-depth knowledge of what goes on, it is sometimes difficult for the lawyers and the sheriff fully to grasp the gravity of what is involved. When someone has been accused and convicted of some of these offences and a fairly modest fine has been imposed, many lawyers have said privately that their impression was that the court did not fully appreciate the gravity of what had occurred. If that happened in this case, and only a modest fine was imposed and then the parliament proceeded to suspend the member for six months and to withdraw his salary and other privileges, there might be some scope for an appearance of conflict between the parliament on the one hand and the courts on the other.

I have a further difficulty. If the member was prosecuted for breaching the standing orders, in all probability he would be acting on behalf of some other person who had paid him the consideration, had given him the benefit in kind, and had asked for a particular cause to be advocated. However, under this provision it would not be competent to prosecute the individual--the member of the public--for being the other party to the criminal enterprise that took place.

I am not suggesting that there are not other statutory provisions around which might well found the basis of a prosecution against the member of the public or the company involved. But, if the criminal law is to be brought in, it seems to me that all those involved in the criminal enterprise should be capable of being prosecuted under the same statute. That would not be competent here.

A further and slightly more technical objection is that the offence would depend upon the precise terms of standing orders which are yet to be made and which, when they are made by the parliament, would not have the standing of secondary legislation. Their vires would not be a devolution issue in terms of Schedule 6. I am not saying that in some circumstances they might not be open to challenge in the court--I do not want to go over that ground again--but certainly they will not be scrutinised by the parliament, following the detailed procedure that would apply either with primary legislation or secondary legislation. I may be wrong but I think it would be very unusual for someone to be prosecuted in a court of law for breaching standing orders which did not have the force of primary legislation or secondary legislation, with the exception possibly of by-laws made by a local authority or some other public authority in accordance with powers given to them. That is a further technical reason.

The main thrust of my argument is this. The parliament will have powers to discipline its members. How it chooses to go about investigating such allegations is for the parliament. I believe that it would be competent to set up a particular committee to deal with it such as the Select Committee for Standards and Privileges in another place. It would be competent for it to appoint some form of parliamentary commissioner, such as exists in another place, to carry out the investigation and to lay details of the complaint before the committee concerned.

16 Jul 1998 : Column 480

If the committee, and ultimately the parliament, has power to suspend the member, possibly until the date of the next election and therefore effectively exclude him for the remaining term of the parliament, that seems to me to be more than enough power of punishment. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page