Wednesday 28th February 2024

(2 months, 2 weeks ago)

Lords Chamber
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Motion to Agree
Moved by
Lord Gardiner of Kimble Portrait The Senior Deputy Speaker
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That the Report from the Select Committee Temporary exclusion; Statements on trade between Northern Ireland and the rest of the United Kingdom; and Financial Services Regulation Committee (2nd Report, HL Paper 64) be agreed to.

Lord Gardiner of Kimble Portrait The Senior Deputy Speaker (Lord Gardiner of Kimble)
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My Lords, I shall focus on the Procedure and Privileges Committee proposal on the new Standing Order on temporary exclusion, but should there be any questions on the other points covered in the report, I will of course address them in winding up.

The proposed new Standing Order on temporary exclusion is the outcome of almost two years’ work, lead in the first instance by the House of Lords Commission as the senior committee with responsibility for safety and security on the Estate. The task of the Procedure and Privileges Committee has been one of implementation, drawing up a Standing Order to give effect to the framework of a temporary exclusion scheme outlined by the commission.

The Parliamentary Estate is principally a place of work. It is also an important cultural and educational centre, with many visitors, including a considerable number of school parties. After careful consideration, the commission concluded that a Member charged with serious sexual or violent offences should not have free access to the Estate while awaiting trial. Indeed, if they were staff of the House, they would be suspended pending the outcome of any criminal process.

After a consultation to which all noble Lords were invited to contribute, the commission has brought forward proposals for the temporary exclusion of Members charged with specific serious offences. The scheme is designed to be as straightforward and streamlined as possible. It will take effect at the point of charge; it will not be triggered by an unsubstantiated allegation, nor if a Member of the House is investigated or arrested. It will be triggered only when the prosecuting authorities bring charges, having satisfied themselves that there is enough evidence to establish a reasonable prospect of conviction.

Exclusion would apply in respect of all serious violent or sexual offences that are liable to a sentence of more than two years’ imprisonment. The process of exclusion would in such circumstances be automatic. Indeed, this is a key feature of the scheme. Once someone has been charged, it is for the courts to determine their innocence or guilt, and no one else. The proposed scheme supports that principle. Exclusion would imply no judgment on the Member concerned; it would be a temporary measure akin to those used in workplaces across the land pending the final decision of the criminal justice system.

I turn to the terms of exclusion. The House possesses the power to modify or limit the rights of attendance in specific circumstances. This was reaffirmed by the House in 2009, when it resolved to suspend two Members found to have breached the then Code of Conduct. The power to suspend was subsequently put on a statutory basis, but the House’s inherent power to place conditions or limitations on Members’ exercise of their undoubted rights remains. This is why the proposed Standing Order sets out what excluded Members would not be allowed to do, rather than giving an exhaustive list of what would still be allowed. Excluded Members would not be allowed to participate in proceedings of the House or any of its committees, whether in person or remotely, to enter the Parliamentary Estate, to vote in hereditary Peer by-elections or elections for Lord Speaker, or to undertake parliamentary-funded travel.

Activities not falling under those headings would by necessary implication continue to be permitted. Excluded Members could undertake parliamentary business not requiring personal presence, including but not limited to tabling Questions for Written Answer. They would retain their parliamentary IT account and would continue have access to the network and other digital services. They could also commission research remotely from the Library. Existing staff sponsored by the Member would retain their access rights. Excluded Members will remain subject to the Code of Conduct.

The commission took full account of the parallel work in the House of Commons looking at the same issue, which I understand will come before the other place on 4 March. Obviously, the two Houses need to work together on issues of safety on the Estate, although that does not mean that we have to have identical approaches.

To touch briefly on the amendment tabled by my noble friend Lord Attlee, it raises the issue of charges brought in overseas jurisdictions. The draft Standing Order provides an extra safeguard in the event that a Member of the House is charged with a serious violent or sexual offence overseas. In doing so, it reflects similarly nuanced approaches adopted in statute in Section 3 of the House of Lords Reform Act 2014 and in our own Code of Conduct. The reason is simple. There may be cases where behaviour that is deemed a criminal offence overseas is not an offence domestically. If a Member is charged overseas and the House is sitting, the exclusion will last for a maximum of 10 working days and will continue in force only if the Leave of Absence Sub-Committee—made up of myself, the Chief Whips and the Convenor of the Cross Benches—resolves to that effect. I emphasise that 10 days is a maximum. The sub-committee is a small body and in reality would almost certainly reach a decision sooner than that. If a Member was facing genuine charges overseas for serious offences, they should certainly be subject to exclusion in the same way as someone charged with a similar offence in the United Kingdom.

I am sure noble Lords agree that safety of those on the Parliamentary Estate is paramount. I hope that this Standing Order will never have to be activated but it is in the interests of those who work and visit here. I therefore commend it to the House. I beg to move.

Amendment to the Motion

Moved by
Earl Attlee Portrait Earl Attlee
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At end insert “, but regrets that the provision on temporary exclusion could enable foreign states to prevent a member from attending the House for up to ten sitting days.”

Earl Attlee Portrait Earl Attlee (Con)
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My Lords, I am grateful to the Senior Deputy Speaker for the skilful and clear way that he has explained his proposals. I am sure that the whole House is grateful to the House authorities for how they have developed the proposals, which, as the noble Lord explained, work in a slightly different way from those in the Commons but none the less have the same effect of keeping everyone safe on the Parliamentary Estate.

Our system will be automatic, avoiding any committee or officer of the House being put in a difficult position. So far as the UK’s criminal justice system is concerned, we can be confident that our independent prosecuting authorities will, in all cases, fairly and competently assess, first, whether the evidence is credible; secondly, whether there is a realistic prospect of conviction, as the noble Lord pointed out; and, thirdly and finally, whether any prosecution is in the public interest. Therefore, in any case of exclusion arising from a charge in the UK, we can be confident that there is a case to answer and that the noble Lord’s proposals are sound.

My amendment claims that foreign states will be able to prevent noble Lords attending this House—if only for a short while. This is because with a prosecution in a country with which we might not even be friendly, the Clerk of the Parliaments will have no choice—no discretion—but to exclude a Member who is charged with a relevant offence in that country. There is no sanity test or the need for that country to be a member of, say, the EU or NATO, or even for us to have an extradition treaty with that country. I am sure that the noble Lord will argue that the Clerk of the Parliaments could arrange for the Leave of Absence Sub-Committee of your Lordships’ Procedure and Privileges Committee to consider the matter very urgently, and possibly virtually, which is true. He also told us that the sub-committee is a very small, compact committee.

However, inevitably, the committee will be reliant on FCDO advice, and providing it as a matter of urgency might not be a priority for that department—it might not even be convenient. Unless the committee receives clear, unambiguous advice from the FCDO that the charges are false, it might not be easy to lift the exclusion.

Since 2003, we have set a high and reliable bar for charging decisions in the UK; this might not be the case in other jurisdictions. I am not an expert, but I would not be surprised if, in some jurisdictions, the charging decision is a low-level decision and the main decision is made by some sort of magistrate who decides whether the case should go to a criminal court. Sadly, in many countries, the police are either corrupt, incompetent, underresourced—maybe they are all three—and the same could apply to their court system. It is easy to imagine how a false charge could be laid either accidentally or maliciously with the intent of a foreign Government or even a non-state actor.
I can assure the House that these proposals are extremely unlikely to apply to me. However, seven of your Lordships exhibit significant physical and moral courage by visiting far-flung parts of the world, often to the irritation of the Governments concerned. The noble Lords do not hesitate to call out serious human rights abuses or corruption, and these proposals would leave them extremely vulnerable to coercion or attack. I propose that the Senior Deputy Speaker puts his Motion to the House in the usual way but undertakes to ask the relevant committees and House authorities, for foreign jurisdictions only, to task the Leave of Absence Sub-Committee with deciding whether a Member should be excluded, rather than have it occur automatically. I beg to move.
Lord Lilley Portrait Lord Lilley (Con)
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My Lords, I am relieved that the committee did not follow the other place by excluding Members on the basis of allegations alone. That has led to palpable injustices—for example, Andrew Rosindell and his constituents; he was excluded for two years because of malicious allegations that nobody who knew him could possibly have given credence to and which were subsequently rejected.

But I am worried that even the proposal the committee does make undermines the sacred principle of innocent unless and until proven guilty, which Parliament ought to uphold more emphatically than everybody else. The report specifically undermines that principle by justifying exclusion on the basis that a charge means that

“the prosecuting authorities must be satisfied that there is a realistic prospect of conviction”.

In other words, we should assume that anyone charged is probably guilty, not innocent. Secondly, the proposal justifies a precautionary exclusion by invoking that,

“the duty of care towards those on the parliamentary estate, including school parties,”—

ignoring that they are always accompanied by adults—

“should be paramount”.

Paramount means it takes precedence over the presumption of innocence or it means nothing.

Why should noble Lords, or those who serve us, have more protection than the general public? The courts have the power to hold on remand people charged with serious offences that make them, in the opinion of the court, a potential threat to the public. Why should we second-guess the courts or give ourselves a higher degree of protection than the friends, neighbours and acquaintances of noble Lords elsewhere?

Finally, this is a solution looking for a problem. As far as I know, no noble Lord charged with an offence has ever molested anyone on the Parliamentary Estate, least of all the school parties invoked to defend this proposal. I hope the committee will think again and put the presumption of innocence first and foremost.

Baroness Berridge Portrait Baroness Berridge (Con)
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My Lords, as a former barrister, may I ask whether it is the committee’s understanding that the presumption of innocence is sacrosanct in our criminal justice proceedings but that in workplaces around the country that face the same issue it is a relevant consideration? There are workplaces up and down the country, such as schools, where you remove somebody from the premises when they are arrested because of the risk they pose.

I wonder whether the Senior Deputy Speaker could answer the question of the regret amendment. Is it the same high bar of offence that you would have had to have committed overseas to be temporarily excluded from the premises here?

Although the Senior Deputy Speaker outlined the potential risk to children, in the manner of work here, one is often stopped in the corridor, as I have been, by staff asking us to deal with this issue, because they work unorthodox hours in a building that is full of nooks and crannies. As well as their safety, I add that noble Lords need to consider the House’s reputation. We are fortunate to be in a wonderful building that is a UNESCO world heritage site. If anybody were charged with arson and were then able to gain free access to the estate, our reputation would be on the line. Could the Senior Deputy Speaker outline those points?

Lord Gardiner of Kimble Portrait The Senior Deputy Speaker (Lord Gardiner of Kimble)
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My Lords, I thank noble Lords who have participated in this short but important consideration of these proposals, particularly the noble Earl, Lord Attlee, for the amendment. Dealing with that in more detail, the commission considered that the relevant offences set out in the Standing Order would be of significant concern to the Parliamentary Estate regardless of where they were carried out. An automatic temporary exclusion safeguards the parliamentary community—and, indeed, visitors on the Parliamentary Estate—against this risk.

I say carefully to the noble Lord, Lord Lilley, that, unfortunately, in the last five years a former Member of the House was charged, convicted and jailed for sexual offences against minors. That would have triggered this Standing Order. It is of concern that the Member attended the House on 10 occasions after charge, including just weeks before his expulsion. Up and down the land, in the judiciary, in the ecclesiastical world and in many companies, this sort of arrangement has developed for important reasons that we should respect. I say particularly to the noble Lord, although I think it is not correct to talk about what the other place may be considering doing, that that is why, following the very long consideration of the commission and the Procedure and Privileges Committee, we thought that the level of charge was the right basis on which we should present this to your Lordships.

To answer some of the noble Earl’s questions, we have our own lawyers on hand to advise us, so we would not have to wait for the FCDO, particularly if the House is sitting. There is not a day the House sits when I do not look around at many members of the Leave of Absence Sub-Committee. The fact is that we could meet with nigh on immediate effect.

To turn to some of the points on overseas jurisdiction in particular, there is a possibility that Members may be charged overseas when they would not have been liable to such charges domestically. It is for that reason that the exclusion for charges brought outside the UK would lapse after 10 sitting days or two months, whichever is less. It is important that, for the exclusion to be extended, the Leave of Absence Sub-Committee would have to be convinced that the charges brought against a Member met the definition of the serious sexual or violent crime in the UK. This was deemed to be the most effective way of balancing—again, this is about balance—safeguarding and protecting the parliamentary community and visitors while protecting Members from charges that would not trigger the Standing Order if brought by UK authorities.

The noble Earl expressed concern that charges that were irrelevant or malicious could lead to an exclusion from the estate. As I repeat, 10 sitting days is a maximum. As chair of the Leave of Absence Sub-Committee, I would ensure that the sub-committee met as soon as possible, enabling the exclusion to be revoked earlier if appropriate. As the noble Earl said, the sub-committee may need to take advice but, given the safety issues, which I think are paramount, Standing Order 21A(10) provides an appropriate amount of flexibility. Were there to be evidence of genuine difficulty—I say this because it is not only in the report and the Standing Order—the sub-committee is required to keep this Standing Order under review. If this ever needed to be activated—as I said in my opening remarks, I very much hope it never will be—this is another area we would be able to consider if there were difficulties.

The noble Lord, Lord Lilley, posed a point about being innocent until proven guilty. That will be for the courts to decide. That is precisely why the exclusion is temporary and why we considered this in the balance at the level of charge. It is specifically designed so that, as much as possible, none of us is judging another Member. That will be for the courts to do following that charge. The noble Baroness, Lady Berridge, also raised this in the context of the environment and the importance that we have to everyone who works here. That is an aspect of what the commission and the committee considered: we need to be responsible, and we also want to have the right balance in the scheme.

I hope the noble Earl will understand my final words: this will be kept under review as part of the structure. I hope he will accept that we have given this a lot of consideration in statute and in the Code of Conduct, as I said in my opening remarks. We have sought to be consistent in recognising that these things might happen in overseas jurisdictions, but we recognise that and therefore have put in safeguards as best we can in the circumstances. With that, I very much hope that the noble Earl will feel able to not press his amendment.

Lord Rooker Portrait Lord Rooker (Lab)
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My Lords, I am not a lawyer, but I have a couple of questions. I do not quite understand this, and I have read the Standing Orders and looked at the report. Our assumption seems to be that overseas countries have the same independent judiciaries as we have. But nobody has mentioned these countries: Russia and China. Who thinks they have independent judiciaries? All the evidence is that those countries already sanction Members of this House and the other place because of issues that have been raised. As I understand it, the incident—if I can call it that—could be from before someone was a Member of this place, so it could go back. Are we seriously taking countries that we do not believe have an independent judiciary and where, based on cases we read regularly, the Governments are in charge and, frankly, treating them like countries with independent judiciaries and the rule of law? Have I got that right?

Lord Gardiner of Kimble Portrait The Senior Deputy Speaker (Lord Gardiner of Kimble)
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This is precisely why we have made the arrangement in the Standing Order for overseas jurisdictions, particularly because there may well be some countries that deem matters criminal that we do not. It is precisely why, in the statute and in the Code of Conduct, there is this consideration about overseas jurisdictions—and, indeed, why we have factored that into this.

Clearly, if a serious violent or sexual offence was committed by a Member anywhere around the world, it would be appropriate for this Standing Order to be in effect. What we, this report and indeed this proposed Standing Order are saying is that there are very strong safety valves, precisely to outline some of the concerns of the noble Lord, Lord Rooker, and the noble Earl. It is precisely to ensure that there is a safeguard with the sort of malicious charge or allegation in a foreign jurisdiction that was bogus or not correct. That is precisely why I spent some time explaining what would happen, in so far as the Leave of Absence Sub-Committee acting extremely quickly. Obviously, if the House was sitting, it could be with immediate effect, on the basis of, in the balance of these things, protecting a Member who was subject to what I think the noble Lord was alluding to. But that is precisely why there is this element we have to factor in about overseas jurisdictions.
Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I will try to assist the Senior Deputy Speaker and highlight the issue. I certainly understand the problem when you are dealing with a charge in overseas jurisdictions. There are essentially two issues. One is dealt with expressly in the guidance, although in the actual Standing Order the committee is given a broad discretion to take all matters into account. But the sole matter that is looked at in the guidance, and the point the Senior Deputy Speaker has focused on a number of times this afternoon, is whether somebody is charged abroad with an offence that is not an offence in the UK. I am sure we all understand that in those circumstances it would be quite right for the committee to meet quickly and to lift the bar.

The concern I have, I think shared by the noble Lord, Lord Rooker, is about the other case: where somebody is charged in an overseas jurisdiction with an offence that is an offence in the UK, but where that jurisdiction is one where the authorities, for one reason or another, are out to get that person, and where a charge in that overseas jurisdiction does not represent the sort of thorough review of the evidence that a charge in this jurisdiction does.

I wonder whether the way through might be a clear acknowledgement from the Senior Deputy Speaker that the investigations and assessment by the committee in those circumstances would not be limited to the narrow question of whether the charge in the overseas jurisdiction is also an offence in the UK, but would also include the wider question of whether, in all the circumstances, one can reliably assume that a charge in that jurisdiction carries the same weight as a charge in this jurisdiction would.

Lord Gardiner of Kimble Portrait The Senior Deputy Speaker (Lord Gardiner of Kimble)
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I think that is why we have the ability, within the powers of the sub-committee, to review the point the noble Lord has made. It is within the scope of what is intended, as is the ability for us to act quickly, because of the point I described—if it was not an offence in this jurisdiction—as well as the one the noble Lord spoke of. It is also to assess those circumstances in which the charge may have been made in certain overseas jurisdictions.

I hope this does not get activated. But we are charged as a sub-committee with being in a position to keep this under constant review, because we want the right balance of making sure that with overseas jurisdictions we have the ability in this House to act through the sub-committee. If an offence took place in an overseas jurisdiction, rather than in this country, it could well be that we felt that the community here should be protected. The point of trying to get this consistent with the Code of Conduct and previous legislation is to deal with this matter for things happening in overseas jurisdictions.

I recommend that we put this scheme forward, with the caveat that we will keep it under review as and if it ever has to be activated.

Earl Attlee Portrait Earl Attlee (Con)
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My Lords, when I tabled this regret amendment, I was confident that the Senior Deputy Speaker would give me a satisfactory answer. He went very well until he touched on my FCDO point, when, unfortunately, he seemed to think I was suggesting that the sub-committee would have to go to the FCDO for legal advice. We have no shortage of legal advice in the House. I was suggesting that the sub-committee and the Clerk of the Parliaments will have to go to the FCDO to get guidance on the situation in that country, and it may well involve the activities of the Security Service and other government agencies to find out what is happening. My final word is: you will be sorry. I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.
Motion agreed.