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Like the authority, the new commissioner is likely to be regarded by the courts as a statutory body, subject to the normal principles of administrative law and judicial review. I suggest that there is nothing for Parliament to fear from that either. The Independent Parliamentary Standards Authority and the commissioner are deliberately being set up as bodies independent of Parliament. Although their functions are of great concern to parliamentarians, payments of allowances and registration of financial interests are not matters of privilege and do not entail questioning of proceedings in Parliament. Any decisions on sanctions to be imposed on individual Members of Parliament will, as now, be for the Committee on Standards and Privileges. That committee is a committee of the House of Commons set up under the rules of the House and answerable to the House. The Bill does not affect in any way the committee's status; its proceedings are recognised as proceedings in Parliament and, therefore, are immune to questioning in the courts by virtue of Article IX of the Bill of Rights 1689. If further assurance is needed, that fact is underlined by what is now Clause 1 of the Bill. I do not think that the Bill has implications for the relationship between Parliament and the European Court of Justice or the European Court of Human Rights.
Lord Campbell-Savours: My Lords, I am sorry to intervene at this stage but perhaps I can take my noble and learned friend back to what she said about the commissioner not having a role in carrying out investigations into paid advocacy. If a Member has not registered an interest but perhaps is caught on the issue of paid advocacy, does that mean that in a complaint which spans both registration and paid advocacy the commissioner outside privilege-the commissioner appointed under the Bill-will consider the issue of registration and the other commissioner, inside privilege-the commissioner for the Committee on Standards and Privileges-will deal with the issue of paid advocacy? In other words, two different commissioners may well end up dealing with exactly the same case. Perhaps we need some assurances on this. If there are to be two commissioners operating on that basis, perhaps we should appoint one and give him two caps: one as commissioner for the Committee on Standards and Privileges and a second as commissioner for IPSA, working outside the House.
Baroness Scotland of Asthal: My Lords, of course, we might have to look at that in the future. We need to be very clear that IPSA will set the rules on paid advocacy under Clause 5 but that the commissioner's functions under Clause 6 are limited to the allowances scheme and breaches of registration of interests. Investigations of alleged breaches of the paid advocacy rules will continue to be a matter for the current standards commissioner who will report to the Committee on Standards and Privileges. I believe we have clarity there. Of course, some issues will have to be looked at later on but there is not a lack of understanding about how the two will interact one with the other. We are in a fairly robust position going forward.
I was dealing with the situation in relation to the European Court of Justice. I hope I made it clear that I do not think that the Bill has implications for the relationship between Parliament and the European Court of Justice or the European Court of Human Rights. I see nothing in it that raises issues of European Community law that might therefore be justiciable in the ECJ.
In so far as issues arise under the European Convention on Human Rights, if, as the Joint Committee on Human Rights argues, the current procedure of both Houses is incompatible with the convention, it would be open to a Member affected to challenge them in Strasbourg. The Government respectfully disagree with the committee that the current position is in breach of MPs' convention rights. We think that the better view of convention jurisprudence is that Parliament is entitled to have its own internal disciplinary system. In any event, the Bill does not affect the existing procedure, except to add a degree of independence and further safeguards to the investigation process before findings are referred to the committee.
I think it might be convenient if I deal with the particular concern raised by the noble Lord, Lord Jenkin, in relation to those two courts. The position is different depending on whether we are talking about the European Court of Justice or the European Court of Human Rights. This was explored quite extensively in Committee. The European Court of Justice interprets matters of EU law. Article 234 provides that the European Court of Justice has jurisdiction to give preliminary rulings on matters of EU law, and a domestic court may refer such matters to it when it considers that a decision on the question of law is necessary to enable it to give judgment. I think noble Lords were concerned about circumstances that might arise where someone aggrieved as a result of the Bill could have a matter referred from the domestic courts to the European Court of Justice.
However, let me make it clear that this is not something about which the Government consider there is any real concern. The subject matter of the Bill relates to the allowances and financial interests of Members of the House of Commons. In the Government's view, it is very unlikely that anything in the Bill would give rise to subject matter that could be interpreted by the European Court of Justice. I note that this accords with the view that the noble and learned Lord, Lord Mackay of Clashfern, expressed in Committee. In Committee, the noble Lord, Lord Jenkin, made particular reference to the European Charter of Fundamental Rights. Incorporation of the charter would not alter the position as I have outlined it because it does not extend the scope of EU law.
I now turn to the position concerning the European Court of Human Rights in Strasbourg. The Government cannot rule out the possibility of matters concerning conduct and discipline in Parliament making their way to the Strasbourg court. I hope I made that clear in my letter. As long ago as 1999, the Joint Committee on Parliamentary Privilege noted that, although proceedings in Parliament are explicitly excluded from the Human Rights Act, that does not affect the position
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A further point to note is that noble Lords should find some comfort from the fact that the Strasbourg court, while not bound by Article IX of the Bill of Rights 1689, has shown that doctrine the utmost respect in the past; I refer to the case-the noble Lord has already mentioned it-of A v the United Kingdom, which the Strasbourg court decided in 2003. To give the noble Lord greater comfort, I should say that the majority was six to one. Most people would say that that was a win. The applicant in that case complained that parliamentary privilege infringed her right to access to a court, guaranteed under Article 6 of the convention, by preventing her from being able to sue a Member of the other place in defamation.
The Member had made the statements that were alleged to be defamatory in Parliament and was thus, at least as far as the domestic courts were concerned, protected by privilege. Even though not bound by Article IX of the Bill of Rights, the Strasbourg court found that there had been no infringement of the convention. This is because the Strasbourg court held that parliamentary privilege pursued the legitimate aim of ensuring that freedom of speech in Parliament was protected and to maintain the separation of powers between the legislature and the judiciary.
The restriction was proportionate because, among other things, it protected only statements made in proceedings in Parliament and the applicant had other means of redress-for example, through the House of Commons Committee on Standards and Privileges. Although the case was not decided in the context of conduct and discipline functions of Parliament, it demonstrates the great respect that the Strasbourg court has previously shown to the UK doctrine of parliamentary privilege, and is an exemplar of what the margin of appreciation delivers. We expect the Strasbourg court to continue to show such respect in the future.
Lord Tyler: My Lords, I am very grateful to the Attorney-General. Does she acknowledge that if the Government had followed the recommendation of
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Baroness Scotland of Asthal: My Lords, the Government have taken on board the concerns that were raised 10 years ago, but your Lordships will remember that the recommendations were not all universally welcomed. Some of them have proved not to be entirely correct, so perhaps this is not the moment to bandy about beliefs about who was right and who was wrong. I simply ask noble Lords to accept that we have all learnt a lot through the passage of time.
Lord Barnett: My Lords, I am a non-lawyer and I, too, read my noble and learned friend's 10-page letter, which I thought I understood. If she is saying in effect that the amendments tabled by the noble Lord, Lord Jenkin, are unnecessary, a more important question is: if they were on the statute book, would they do any harm?
Baroness Scotland of Asthal: My Lords, we should have on the statute book only that which is necessary. I say that most particularly because I received a very strong stricture from the Lord Chief Justice, who bewailed the fact that we put anything unnecessary on the statute book and enjoined us to resist the temptation fearfully. Having had that stricture once, I will need only to contemplate it to refrain from the seductive lures that my noble friend gives me on this occasion. In so far, therefore-
Lord Lester of Herne Hill: My Lords, I was not going to interrupt, but is not the answer that it would do harm because it would be inconsistent with our obligations under the convention and would contradict the excellent European Communities Act introduced by the noble and learned Lord, Lord Howe of Aberavon?
Baroness Scotland of Asthal: 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
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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
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Lord Higgins: My Lords, when I first suggested in discussions ahead of the Committee stage last week that it would be helpful to have the advice of the Attorney-General, the Leader of the House kindly agreed to consider it. I should stress that the suggestion in no way reflects on the Leader of the House, who has shown the most extraordinary grasp of the Bill and has been eloquent in expressing her views on it. None the less, I think that it was a good suggestion and I am glad that it was accepted. It has been extremely helpful to have the views of the Attorney-General. In addition to what she has said this afternoon, she has, as the noble Lord, Lord Barnett, pointed out, written a letter of some 10 pages in length. I have to say that in some ways I found the letter easier to understand than the speech. I am not sure to what extent the status of the letter means that it can be included from a Pepper and Hart point of view-perhaps by way of a Written Answer or something of that kind.
I do not want to delay the Committee for long. The letter reassures one to a considerable extent. However, it is wise that we should have the safety net of the amendment that was accepted last week with regard to the Bill of Rights in this Bill even though, if I understand it correctly-the Attorney-General will tell me if I am wrong-she does not think it likely to be used. I will not say that it is unnecessary because I do not think that it is, but it is unlikely to be used. The only point that I have on that is that I now realise that the amendment is not, strangely enough, in line with the Bill of Rights, which refers to "any court", whereas the amendment as it has been included in the Bill refers to "any court in the United Kingdom". I am beginning to wonder whether we ought to take out the phrase "in the United Kingdom" at Third Reading to avoid any doubt about the international position. No doubt we can think about it.
I thank the noble and learned Baroness for her remarks, which are reassuring. It is quite extraordinary that the Bill ever saw the light of day in its original form given the fantastic way in which it has been hacked about since then. However, we have made a good job of hacking it about and we can be reassured that we have done as much as we can about the concerns expressed with regard both to privilege and to the relationship between the courts and Parliament.
Lord Lester of Herne Hill: My Lords, there is just one stone that I should like to turn, because I respectfully agree with all that the Attorney-General has said. The point arises later in amendments about fairness and rights of appeal. Does the noble and learned Baroness agree that, if the House of Commons were to change its standing orders and procedures in such a way as to include fairness and some sort of right of appeal, this would make it even less likely that a case could succeed
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Lord Pannick: My Lords, perhaps I may add one footnote to the powerful and helpful observations of the Attorney-General, with which I agree, relating to judicial review. There are many cases where courts have declined to entertain applications for judicial review where the body concerned, even though it is a statutory body, is performing an advisory function and the effective decision is made by another person. The court takes the position that the complainant should exhaust the procedure before the body which decides the matter rather than litigating with the advisory body.
This is important because many-not all-of the functions which we are conferring on IPSA and the commissioner are advisory, not deciding, functions; they are reporting, effectively, to the other place. Were a judicial review application to be brought in relation to the performance of such a function, I would expect that the courts would be likely to decline to entertain the application. They would do so not merely because IPSA and the commissioner are advisory bodies in that respect, but also because their function is preliminary to the performance of a parliamentary function by the other place. Were they to read these proceedings, I would not want any future court to proceed on the basis that it was accepted in this House that applications for judicial review against IPSA and the commissioner would and should be entertained by the High Court in all circumstances.
Lord Mackay of Clashfern: My Lords, I respectfully agree with the noble Lord, Lord Pannick. I am sure that none of us would wish to encourage the thought that these proceedings, which are outside Parliament but are preliminary to proceedings in Parliament, should be the subject of judicial review. The jurisdiction is there in all probability but I would hope that the courts would find it unnecessary to exercise it. I think I am right in saying-I am going very much on my memory-that there is a medical case in the books in which the House of Lords thought that judicial review was possible even though there was an ultimate appeal to the courts. But that does not detract from the point that has been made.
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