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Lord Hope of Craighead: There is another aspect to this matter which I mention by way of supplement to what the noble and learned Lord, Lord Mackay of Drumadoon, has said. One of the features of the criminal law is that it deals with the offence after the event. That is the nature of the criminal process. But the problem with lifting the lid, as it were, on the affairs of the parliament in the way that these subsections do, is that they introduce the possibility that someone may attempt to deal with the matter in advance by means of the civil process.
I have in mind the court being invited to pronounce an interim interdict to prevent the member acting in a way which would attract the offence. I do not know whether it is envisaged by Ministers that the courts in their civil capacity should be intervening in the affairs of the parliament in that way. My own view is that it would be preferable, so far as possible, that the parliament should be left to regulate its own affairs, including this particular chapter. But the presence of these offences in this clause tends to suggest that if someone were seeking to bring an interdict in the civil process, the courts should entertain that matter to deal with the matter which is expressly stated to constitute an offence under the Bill.
Baroness Carnegy of Lour: I am deeply worried about this from my amateur and lay knowledge of the way in which the law works. A really rather serious offence is being considered, with a fine of up to £5,000 or three months' imprisonment. I see in subsection (8) that the Lord Advocate and the Solicitor-General are included, whether or not they are members of the parliament. Can the noble and learned Lord describe the scene in which the Sheriff tries the Lord Advocate or the Solicitor-General and all the other things that the noble and learned Lord, Lord Hope, has been talking about with the possibility of an interdict against the Lord Advocate behaving in a certain way? It seems slightly Alice in Wonderland and also rather terrifying.
Lord Hardie: I do not find it terrifying at all. I have confidence in the holders of the office of Lord Advocate and Solicitor-General for Scotland. I am certain that they would never commit a criminal offence. But, if they did, whether it was under this provision or not, they, like any other members of society, are subject to the law and they would be prosecuted.
There are two matters raised by these amendments: the short question referred to by the noble Earl, Lord Balfour, and the more substantial one touched upon by the noble and learned Lord, Lord Mackay of Drumadoon. Without disrespect to the noble Earl, I shall deal with his question in the body of the response to the substantive issue. As I understand the argument, the noble and learned Lord suggests that the powers under subsection (5) of Clause 22 are sufficient. Therefore, one can delete subsections (6) and (7) which create the criminal offence and the penalty. As to the latter, subsection (7) simply imposes the
Turning to the powers of the parliament to take action under subsection (5), the noble and learned Lord will be aware that this is not an unusual situation. For example, in employment law it is not uncommon for an employer to have civil remedies that include the dismissal or suspension of an employee, whereas if the employee has been engaged in criminal activity he will also be subject to the criminal law. People outside politics view very seriously any abuse by Members of Parliament. We have determined that from the outset there should be no room for doubt that members of the Scottish parliament are expected to adhere to rigorous rules of conduct in relation to declarations of interest.
If the Committee turns to Clause 22 it will see that the first four subsections indicate what members must do. They have to register their interests in the appropriate register. There is also an obligation under subsection (2) to declare a financial interest in any matter before the member takes part in any proceedings. It may be that standing orders will prevent the member from taking part in proceedings once that financial interest is declared. Subsection (4) is concerned with lobbying. A member must refrain from taking money from people to advocate a particular cause in parliament. I am sure no one doubts that these are reasonable obligations and ones that the public may reasonably expect to be imposed upon members of the Scottish parliament so that they retain the trust the electorate has placed in them.
Having gone that far, the Government wish to emphasise the importance that they place upon the integrity of members and their requirement to meet standards which are not unduly onerous. In that context we do not believe that it is unreasonable to create a criminal offence if a member of parliament chooses to ignore these obligations. Therefore, there are two sanctions. If the member decides not to comply with subsections (1) to (4) and fails to declare an interest or accepts money in exchange for advocating a particular cause the parliament make take action or the criminal authorities may take action, or both. I have no difficulty with that. If members of parliament are aware from the outset that that is what is expected of them and that it is a criminal offence to fail to comply with these obligations, then they know the risks that they are taking. That would bring home to them the importance of being open and frank about their involvement and their interests. I hope that there would then be less risk of a member straying from the straight and narrow.
I turn to the question of whether summary proceedings are appropriate because of the possible conflict between the criminal courts and the parliament. I do not find any difficulty with that. It is not unusual for the criminal authorities to investigate alleged misconduct by elected members, whether of local authorities or other bodies. With respect to the noble and learned Lord, to say that the sheriff does not or may not fully appreciate the significance of the action is not a proper answer.
Having established the guilt of a member, the sheriff is then faced with determining the appropriate penalty. The maximum penalty is fixed at £5,000. The sheriff, as in other cases, will have to determine where, within the range of zero to £5,000, he thinks that this particular offence falls. If it is a blatant offence, it is at the higher end; if it is not blatant, it will be towards the lower end.
To deal with the point raised by the noble and learned Lord, Lord Hope of Craighead, I do not envisage that the creation of a criminal offence would have the effect of someone bringing interdict proceedings. I am aware, of course, that if one is apprehensive of someone committing a wrong, it is possible in some circumstances to bring such proceedings. But the likely situation is that if there is an apprehended wrong, an interdict may be sought.
As far as the amendments are concerned, given the importance that we place upon members complying with their obligations under Clause 22, and given that we see the creation of the criminal offence as an important step in bringing home to members and emphasising in public that we consider the probity of members to be of the utmost importance, I would respectfully submit that it is appropriate to have such an offence.
I turn now to the point made by the noble Earl. The offence would be investigated in the same way as any summary criminal offence: first, by the police reporting the matter to the procurator fiscal, but the fiscal would be the person who would be responsible for taking summary proceedings. With that explanation, I invite the noble Lord to withdraw the amendment.
Lord Clyde: Before the noble and learned Lord sits down, I wonder whether he could set my mind at rest about one aspect of the matters which were raised earlier, which causes me considerable concern. It is of course elementary that in defining any criminal offence, one has to do so with the utmost precision, otherwise the criminal law comes into disrepute, and no one can know for certain whether they are offending.
Here we are apparently giving the Scottish parliament the opportunity, in the devising of its standing orders, to define an offence. While I am sure that we have immense confidence in it in the preparation of its standing orders, do we have the confidence to be sure that in defining registrable and financial interests it will do that with the complete precision which is the necessary ingredient for defining a criminal offence?
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