House of Lords (Expulsion and Suspension) Bill [Lords]

Lord Arbuthnot of Edrom Excerpts

Friday 27th February 2015 Commons Chamber

The new clause is modelled on section 1 of the Parliamentary Standards Act 2009, and preserves the exclusive cognisance of the House of Lords over its own proceedings and membership. Either the House of Lords has exclusive cognisance over its proceedings, or one can put forward an equally credible argument that these issues are now so important that they cannot just be left to Parliament. Throughout this Bill, the test is about what will command public confidence, because it is important that the public and the nation—our constituents—should have confidence in the integrity of Parliament as a whole and in both Houses.

[Mr James Arbuthnot (North East Hampshire) (Con)]

While we are talking about a Bill of Rights from a few centuries ago, let me check that the wording of new clause 2 is meant to be as printed in the Order Paper, namely that nothing in the Act shall be “constructed” by any court as affecting the Bill of Rights 1689. Should that read “construed”, or is it a special language from 1689?

[Sir Tony Baldry]

Subject to any advice that the Clerk gives you, Madam Deputy Speaker, I think we all took that as meaning construed, but we know that for these purposes construed and constructed probably mean pretty much the same thing and I do not think anything really turns on it. I am grateful to my right hon. Friend for drawing the House’s attention to that point.

What is important is what commands public confidence. Over the years the issue of parliamentary privilege has detained Committees and the House from time to time, because it has always been recognised that Parliament and parliamentarians need certain rights or immunities to ensure that we can operate freely and independently. In 1999 the Joint Committee on Parliamentary Privilege observed:

“Parliament makes the law and raises taxes. It is also the place where ministers are called to account by representatives of the whole nation for their decisions and their expenditure of public money. Grievances, great and small, can be aired, regardless of the power or wealth of those criticised. In order to carry out these public duties without fear or favour, Parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims.”

Parliament must therefore be free from intervention by the courts, according to the Joint Committee on Parliamentary Privilege.

As we will see, however, at certain times the courts have become involved in the workings of Parliament, and we must consider how we respond to that. It is normal for a democratic state to protect parliamentary independence. Parliamentary immunity has developed throughout the world, not as a constraint on the rights of the citizen but as a fundamental liberty. Parliamentary privilege is not a privilege for parliamentarians, but the privilege of our constituents. Privilege refers to the range of freedoms and protections each House of Parliament needs to function effectively. In brief, it comprises the right of each House to control its own proceedings and precincts, and the right of those participating in parliamentary proceedings, whether or not they are Members, to speak freely without fear of legal liability or other reprisal.

Over time, however, we have seen the development of some grey areas. The Bill was introduced by Baroness Hayman as a private Member’s Bill in the House of Lords. It passed all its stages in the Lords and then came to this House. Under the procedures of this House, the Bill was, very appropriately, taken up by my right hon. Friend the Member for North West Hampshire, who is a former Leader of the House. The Bill had a rather unusual Second Reading in that it was conducted upstairs in Committee, so this is the first time there has been an opportunity in the Chamber to debate the Bill. The Bill touches on who is summonsed to Parliament and who can be a Member of Parliament, so it is right and appropriate that this Chamber should give it reasonable consideration. I was very grateful to the House for providing half a day for consideration on when women bishops might enter the House of Lords. If we are willing to give half a day to whether women diocesan bishops could be given precedence over others to take their place in the House of Lords, it seems appropriate to give equal time to considering other measures relating to the House of Lords, such as those on suspension and expulsion.

My right hon. Friend the Member for North West Hampshire, in a speech to the Conservative spring forum in 2010, observed that there is a grey area on whether parliamentary privilege precluded criminal prosecution of Members of this House accused of false accounting relating to parliamentary expenses. There were suggestions that there should be clear legislative proposals to ensure that privilege cannot be abused by Members of Parliament to evade justice. This has been an issue of some ambiguity for some time. The 1999 Joint Committee on Parliamentary Privilege, chaired by Lord Nicholls of Birkenhead, said it was right for Parliament to regulate its own affairs and that Members needed to be able to speak freely. However, the Committee proposed clarification of the scope of various privileges and in some cases greater powers for the courts to examine proceedings in Parliament. It recommended that all the changes proposed in its report should be embodied in a new and comprehensive parliamentary privileges Act, codifying parliamentary privilege as a whole. Unless I have missed something, I do not think that Parliament ever got around to carrying out the recommendations of the Joint Committee that there should be a comprehensive parliamentary privilege Act codifying parliamentary privilege as a whole.

We have the notion that Parliament controls matters and that both Houses of Parliament control their own precincts and procedures, but that is now sometimes more of a sentiment than an actuality. In 2002, in the case of A v. the United Kingdom, the European Court of Human Rights held that the absolute freedom of speech in Parliament was proportionate and did not violate the European convention on human rights, although—this is an important point—the Court also asserted its jurisdiction over national Parliaments’ privileges. The Court held that a rule of parliamentary immunity

“cannot in principle be regarded as imposing a disproportionate restriction on the right of access to the courts, as embodied in Article 6”

of the European convention on human rights. Moreover, the Court held that the creation of exceptions to that immunity, the application of which depended on the facts of any particular case, would seriously undermine the legitimate aims pursued.

Parliamentary privilege is clearly a living concept. It still serves to protect Parliament and all those involved in its proceedings. Article IX of the Bill of Rights says:

“the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

If that is the case, Parliament needs either to assert that right and say that this is a matter entirely for the cognisance of the House of Lords, or to say that there may be good reasons for others—the courts—to have some involvement and interest in what is taking place. Parliament may well come to the view that the public no longer have confidence in the ability of Parliament, or its individual Houses, to manage their own affairs. That is why, in this place, we agreed by Act of Parliament to have an Independent Parliamentary Standards Authority. I think it was felt by the House of Commons that when it came to commanding public confidence, it was far better to hand over all matters relating to parliamentary expenses to an independent statutory body than to have continuing supervision by the House of Commons itself. I think, by and large, that has helped considerably in restoring public confidence in House of Commons expenses.

There is, therefore, a perfectly credible argument for a system in which, if it was felt that Members of either House had misbehaved so badly, there should be some judicial oversight of the process. One has to decide one way or the other: either we assert the established principle in the Bill of Rights that each House has cognisance over its own affairs, or we say that there may be some judicial oversight. The purpose of new clause 2 is to try to clarify that.

I will of course listen with interest to the explanation of my right hon. Friend the Member for North West Hampshire as to why the Bill is drafted as it is. It may well be that that explanation satisfies the whole House. I well know my right hon. Friend’s ability to explain Bills, because he and I once served together on a Committee considering a Bill to introduce leasehold reform. I remember him very elegantly one afternoon describing, with his hands and words, what a flying freehold and a flying leasehold look like, so I have absolutely no doubt that he will be able to explain to the House the exclusive cognisance of the House of Lords. If there is to be exclusive cognisance of the House of Lords, however, we have to be confident that that will work one way or the other.