Risk-based Exclusion

Chris Bryant Excerpts

Monday 13th May 2024 Commons Chamber

[Penny Mordaunt]

On behalf of the House of Commons Commission, I rise to speak to the motion standing in my name on the Order Paper. I will keep my opening remarks short and try to answer right hon. and hon. Members’ issues at the end of the debate.

The motion before us provides for four things: for the House to approve the updated proposals on risk-based exclusion published on 14 December 2023 and modified by the Commission at its meeting on 18 March; to agree a new standing order to implement the risk-based exclusion policy; to require Mr Speaker to appoint a panel to review the operation of the new Standing Order, to report within six months; and to allow MPs who are excluded from the parliamentary estate to apply for a proxy vote. There is also an amendment tabled in my name on behalf of the Commission, which would enable the risk assessment panel to meet during recess. This is a technical amendment—

[Sir Chris Bryant (Rhondda) (Lab)]

Will the Minister give way?

[Penny Mordaunt]

I will not give way during my opening remarks. I will come back to any issues that the hon. Gentleman raises.

This is a technical amendment required to ensure the proper functioning of the panel and therefore the scheme. These proposals reflect extensive consultation with Members, parliamentary Select Committees and other relevant stakeholders. This includes a debate on 12 June last year in which Members raised a number of thoughtful points, which the Commission has taken into account, including the point at which risk assessment is triggered. This is one of a number of measures that are being reviewed and brought forward by the Commission to improve standards of behaviour and safeguarding. I thank all members of staff and hon. Members for their contributions, which have brought the Commission to agree these proposals and put forward today’s motion, and I look forward to hearing further contributions this afternoon.

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[Dame Karen Bradley]

The right hon. Gentleman makes the point I referred to earlier: there are different points in the judicial process at which a charge or arrest is made in the different legal systems of the United Kingdom. We have three different legal systems and charges can be brought at different times.

This is a balanced judgment—there is no right or wrong answer—on the basis of what is being proposed: to remove the right of a Member of Parliament to attend the Palace of Westminster, which is an ancient right we have held for hundreds of years. We are proposing to introduce something unique and different. Based on the evidence we heard and the advice we received from the Clerks and others, exclusion on charge feels like about the right point to make that decision.

[Sir Chris Bryant]

Where this whole debate has gone completely wrong is by being obsessed with exclusion. It is actually about making a risk-based assessment of what needs to be done, in a certain set of circumstances, completely proportionate to the point and the severity of the crime being considered, to ensure that this place is safe. I really deprecate the fact that this is being called “risk-based exclusion”. I suspect we will be talking about very few people who might be excluded, but if there was a proper assessment of risk at arrest and proportionate measures were taken to ensure that everybody here was working safely, surely that would be the right way to move forward.

[Dame Karen Bradley]

I can never resist the hon. Gentleman, and that is why I will always give way to him. He makes a very good point. There may be a role for another process that does that, but for the exclusion process it feels that the right point is at charge.

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[Sir Jacob Rees-Mogg]

The right hon. Gentleman says that a Member agreeing not to come in is the same as banning a Member from coming in. That is clearly not true.

It would not take very long to turn this motion into legislation, and that would be the proper constitutional way of doing this.

The proposal is, to my mind, entirely ineffective. We know that the powers of arrest of the Serjeant at Arms are pretty much phantasmagorical. I am sorry to embarrass the great Serjeant, who is sitting in his place. He is a most distinguished figure, but the idea that he could turn up and arrest somebody for failing to appear at a Select Committee is pretty much theatre rather than an effective threat. Our ancient powers of imprisoning are no longer there, so what happens when this person, excluded by a small cabal, decides to turn up? What are we going to do? We will have a vote of the whole House to expel him—the proper process in the first place.

[Sir Chris Bryant]

Notwithstanding the right hon. Gentleman’s previous remark, I mostly agree with what he says. There is a problem here. When the Standards Committee reported on this, we made the point that exclusion is the very last thing that should be considered. In most cases, a Member in this kind of situation would choose to accept the decision voluntarily. However, we also said that if a Member chose not to, the House should vote on whether the Member should be excluded. Would the right hon. Gentleman be happy with that process?

[Sir Jacob Rees-Mogg]

I entirely agree with the hon. Gentleman: any exclusion must be a decision of the whole House. That is our most ancient constitutional right. The idea that it can be stopped by three people—even, Madam Deputy Speaker, one as distinguished as the Chairman of Ways and Means—is not in the spirit of our constitution.

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[Sir Chris Bryant (Rhondda) (Lab)]

It is strange to agree so much with the right hon. Member for North East Somerset (Sir Jacob Rees-Mogg). I think that he is a bit shocked that I agree with him as well—I see that he nods.

Let me return to two central things. First, this is about Parliament being like every other workplace in the country. Of course there are ways in which we are exceptional—we often emphasise those too much, perhaps—but what was fascinating when we debated the original proposals from the Commission in the Standards Committee was that the lay members all said that in every line of work they were in, this would be standard practice. It would happen in various different ways in different organisations, but certainly in every part of the public sector and in any major employer in the land, this process, in some shape or form, would be absolutely standard. We are simply trying to ensure that this workplace, like any other in the land, is safe not just from external threats but from behaviours that could put staff, members of the public and colleagues at risk.

Secondly, the proposal is about assessing the seriousness of the risk in any given set of circumstances—which heaven knows could vary enormously from the case of one person to another—and then taking proportionate and only proportionate measures to mitigate that risk, as any responsible employer and workplace surely should, and as any other workplace would be required to do, in law written by us. It is about the assessment of risk and proportionate measures to deal with the risk; it is not, in my mind—and I think that it is a terrible shame that it has been billed as such—about exclusion. Exclusion should be, as it is in nearly every other business, the very last point to go to. It would be at the extreme end, when an assessment had been made that the risk was relatively extreme.

Many other things could be done that fall far short of exclusion. For instance, one of the oddities about this building and all the buildings on the parliamentary estate is that we often work, as an MP, with a single member of staff, or two members of staff, behind a big oak door. Somebody might want to make a risk assessment if a Member were, I would say, arrested for a sexual or violent crime relating to a member of staff. They might want to make an assessment that that Member should no longer be in that kind of office and that their office should be one shared with other members of staff, other Members of Parliament or in a more visible space. That might be the perfectly proportionate decision to take, and that could be done entirely without the public knowing and entirely as a neutral act.

This is a really important point: the court of public opinion has no formal rules of evidence, operates entirely to its own agenda, and—in my experience—rarely delivers justice or anything that we would think approximates justice. That is why, notwithstanding the point made about how rumour spreads around here, it is so important that any measure taken should be done confidentially. I think that in nearly every case it would be taken with the agreement of the Member concerned. It should also be considered an entirely neutral process. My worry about the obsession with exclusion as the endpoint of what we are looking at is that it starts to look like a punishment rather than a neutral act.

That is why, in nearly every case, if the assessment of the panel were that there was a significant risk that could be mitigated only through a suggestion of exclusion, the Member would be well advised to follow that advice voluntarily. I think they would in nearly any set of circumstances. However, I agree with the right hon. Member for North East Somerset that, in the end, it must be a matter for the House if there is to be forced exclusion; otherwise, there is a danger that we bring the whole process into disrepute and it will not last for more than five minutes.

[Sir David Davis]

The hon. Gentleman is making some interesting points. I have two concerns about the process. The first is about abiding by our long-standing rule of innocent until proven guilty. The second is that the people being penalised by this measure are our constituents, not us. Does he imagine guidelines for the panel that take those two things on board in the way he just described?

[Sir Chris Bryant]

It is perfectly possible to do that. I can imagine many different circumstances where somebody was arrested for a violent or sexual offence and the panel decided that they would not go down the route of exclusion. The Member would still be able to be present and take part in debates; it is just that certain other factors would be considered, such as saying, “You can’t go on foreign travel on behalf of the House, you can’t go on travel in the UK paid for by the House, you can’t participate in IPU delegations, you can’t use the bars, and we’re going to rearrange your offices.” All of those things could happen entirely without disrupting the Member’s ability to represent their constituents to the fullest possible degree. As I say, this is always about assessing the risk in the specific set of circumstances and mitigating those risks only in a proportionate way. In most cases, my suspicion is that exclusion would be disproportionate and therefore not necessary. That is why it is unfortunate that the motion has been couched in this way.

[Dame Karen Bradley]

I am slightly confused. The hon. Gentleman is making excellent points—they are all good things that we should consider—but the motion is specific in saying:

“The Panel will decide on appropriate measures to mitigate any risk, and such mitigation may include one or more of the following…exclusion from the Parliamentary estate…exclusion from domestic travel…and exclusion from foreign travel”.

It does not talk about exclusion from bars or changing offices. If it did and we were talking about how we might mitigate risk, we might all be in a different position.

[Sir Chris Bryant]

The motion does not preclude those things, either. In fact, the first report produced by a Committee was by the Standards Committee when we took evidence. Interestingly, we said:

“First, we propose that the power to exclude Members from the precincts should form only one part of a wider, formalised risk mitigation process. The evidence we heard from comparable bodies, including the police, suggests that interim suspension is normally a last resort.”

Indeed, we went on to say:

“The House Service could, for example, if it were thought necessary and appropriate”—

I would add “proportionate” to that—

“move the MP’s member of staff to an office shared with other staff, or allocate the MP an office which has a higher degree of visibility.”

Of course, all those things could happen perfectly easily without the motion and could happen now.

I have just a couple more points. On arrest or charge, I find it problematic to land just on charge. That is very late—much later than in any other comparable body in the public sector or the private sector in this country. It is not comparable with the law of the land in terms of what most employers would have to do to be a reasonable employer.

It is important that it is proportionate—that is, first, to the crime itself. That is already met by the motion in one sense, as these measures are about sexual or violent offences. The panel might also want to consider whether we are talking about one instance or several allegations. Secondly, has there been one arrest or two arrests? Has the Member been arrested under caution? We get to various other stages long before charge, such as police bail. Are we saying that we should not even consider these measures when somebody is on police bail? That seems odd to me. I would think that is us falling short of our duty.

The panel should also consider the individual’s co-operation. If the individual Member is being very co-operative, that suggests that we would not need to consider taking major further measures. Then—this point was made earlier—we should think about who the person is that we are talking about. If they are a member of staff working in this building, presumably one would want to assess that the risk was higher and therefore one would need to consider further mitigatory measures.

I have two final points—

[Sir Philip Davies (Shipley) (Con)]

Will the hon. Member give way?

[Sir Chris Bryant]

Oh, all right. I was going to try to make them final.

[Sir Philip Davies]

The hon. Member talks about bail. Presumably, the police bail could instil a condition that that person should not go within a certain distance of the person who has made the allegation, so this process is not needed. The police are perfectly capable of putting in those bail conditions.

[Sir Chris Bryant]

But let us say, for sake of argument—it is only for sake of argument; I am not referring to any individual case at all—that the allegation is that the Member of Parliament has in some way sexually assaulted one of their or another MP’s members of staff here. There are other members of staff in the building. So the police bail may refer to whether they can approach the person who made the allegation, but it would not be able to deal with all the other members of staff who operate in the same purlieu here on the estate. That is why taking the proportionate measure is important.

Earlier, I wanted to ask the Leader of the House a simple question about her own amendment—I know it is very technical and tiny—which says that the panel would be able to proceed during an Adjournment. Would it also be able to proceed during a Prorogation? I hope that she can answer that later.

Finally, the right hon. Member for North East Somerset is absolutely right—the Standards Committee made this point several times when this was being debated from the first set of proposals—that, in the end, a mandatory exclusion of a Member should be a decision of the whole House. That would be a relatively easy thing to add to this process. I note that he had an amendment that has not been selected; for whatever reason, I do not mind. If we are moving to exclusion, I think that it would be cleaner if we had a process where, in the main, the Member would normally be expected to—and would probably, I think—co-operate, but if they chose not to, it would be a matter for a motion of the House, which should be taken without debate and without amendment.

[Several hon. Members rose—]

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[Jess Phillips]

I welcome the right hon. Gentleman’s intervention, and I hope that he took the fact that I was seeking to correct him in the spirit in which it was intended. I will just point out that on the issues of arrest, sexual violence and safeguarding, I am usually right.

[Sir Chris Bryant]

Not to be humble about it.

[Jess Phillips]

Yes.

Today, just on this one day, I have spoken to two women who were raped by Members of this Parliament. That is a fairly standard day for me. I notice that they are not the people who have been mentioned much so far today. Some of them told me what they wanted me to say in this debate. I will just read out some of what was sent to me: that exclusion “at the point of charge sends a clear message to victims that not only will we not investigate unless a victim goes to the police, but we won’t act unless they’re charged, which happens in less than 1% of cases, so what’s the point?” That was essentially what that victim said to me.

The Chair of the Procedure Committee, the right hon. Member for Staffordshire Moorlands (Dame Karen Bradley), told us about all the people she had had in front of her. I wonder how many of the victims of these crimes came and gave evidence, or were given an opportunity to give evidence in private. I am going to stand here and speak up for them, because every single one of them wishes for exclusion to be on the basis of arrest.

The idea that an arrest can happen on a vexatious charge has been raised, which suggests that nobody in this building who has said that has ever dealt with an arrest in a case of sexual violence or serious violence. The amendment to change the motion to “arrest” happens to be in the name of somebody who, as we have already shown, is always right on this, and that of a former police officer, the hon. Member for North East Fife (Wendy Chamberlain). I know that in this House we are not always keen on experts, but I urge the House to understand that it takes a huge amount for somebody to be arrested. You cannot just ring West Midlands police and say, “Jess Phillips assaulted me”, and they come round and arrest me within the hour. What world are we living in? It is absolute madness. If we do not do this on the basis of arrest, we are saying that we do not trust the police officers in our country.

The hon. Member for Christchurch (Sir Christopher Chope) is not in the Chamber today—I have informed him that I will mention him. He has tabled amendments, and if the one tabled in our name falls, I will absolutely vote for his, so this is not a particular criticism of him. When we were both tabling our motions, I asked him, “What about safeguarding?” He said, “The thing is, we are not employed, so employment law does not come to us.” I asked him whether he had children or grandchildren, and I said, “Would you like it in your child’s school if one of the teachers had been arrested for rape and still went to teach your kids?” He said, “The thing is, we are self-employed.” I said, “Okay. Childminders are self-employed, so would you be happy with a rapey childminder who has been arrested looking after your three-year-old? I wouldn’t be.”

Why do we think that we in this place are so special? Why are we all talking as if all the people who work in this building do not have a right to feel safe when they walk around? The women I spoke to today do not feel safe, and they told me to come and say that. The women who work in the office on my floor all said to me, “Go and say this for us today, Jess.” Why do we think we are so special?

I notice that today the constituents of the hon. Member for Christchurch are completely bereft of representation. The argument that we would be taking away our constituents’ rights does somewhat suggest that no one in this building should ever take a day off on the slip—“Don’t be going on holiday; what about your constituents?”

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[Penny Mordaunt]

May I make some progress? I will allow interventions; I just want to get through the points that have been made.

The hon. Member for Edinburgh North and Leith (Deidre Brock) and my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) spoke about what the Government are doing. We are facilitating a debate. I am glad it has been a genuine debate on an important matter, but this proposal from the Commission has been discussed on a cross-party basis.

The right hon. Member for Orkney and Shetland (Mr Carmichael) talked about the legal differences between Scotland and England. There are differences between the English and Scottish legal systems, but in both systems charges are brought only when there is a reasonable view that there is enough evidence that that person has committed a crime. Therefore, in both systems the risk-based exclusion scheme would be triggered when enough evidence has been obtained. The situation would be consistent.

The hon. Member for Rhondda (Sir Chris Bryant) raised a variety of points. Of course, this proposal is one option. It is an option that Mr Speaker and the Commission feel this House should have, but clearly many other things already in existence could safeguard individuals, whether those are voluntary or powers that other people on the estate—for example, the Serjeant at Arms and others—have for excluding people from bars. Other things can also be put in place to safeguard staff.

On the hon. Gentleman’s particular point about Prorogation and Dissolution, the proposal would not apply in those cases. With regard to the former, it is a very short period, so it was viewed that there would not be a practical impact. Again, that can be reviewed in the proposed six-month review. In Dissolution, it would not apply, but it would not be needed because people would be off the estate.

[Sir Chris Bryant]

Will the Leader of the House give way?

[Penny Mordaunt]

I will come to the hon. Gentleman, but let me crack through the other points.

My right hon. Friend the Member for North East Somerset (Sir Jacob Rees-Mogg) gave some examples that slightly misunderstood what the scheme is doing. We are not talking about a Member being expelled from the House, or losing their place as a Member of the House, but being excluded from the estate for a limited period. It is for Parliament, in accordance with the principle of exclusive cognisance, to organise its own affairs. It is orderly therefore for this House to consider the proposals in the way that it is. He invites us to consider a scenario where a Member of Parliament resigned as an MP and then stood for re-election and asked whether this process would still apply to them. If they were still under charge, yes, it would.

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[Penny Mordaunt]

As I said at the start, the House of Commons Commission and others are looking at a number of things. We have had a review published today on strengthening the ICGS. I have a great deal of sympathy with what the shadow Leader of the House said about ensuring that people are directed towards that scheme, it improves and speeds up and the investigation and operational issues are dealt with. That has greatly strengthened the options that people have on the estate.

[Sir Chris Bryant]

I may have counted this wrongly, but I think the Leader of the House said on six occasions that this proposal is from the Commission. It is not, is it? It is her proposal. If it were the Commission’s proposal, it would be at arrest, not charge.

[Penny Mordaunt]

That is not correct.

[Sir Chris Bryant]

Yes, it is.

[Penny Mordaunt]

No, it is not, with all due respect to the hon. Member. The Commission originally proposed arrest. We brought that to the Floor of the House. There were concerns before it arrived, and therefore we decided to have a debate, not a vote on it. Three key issues were raised in that debate, and charge versus arrest was one of them. All three issues have been dealt with by the Commission. The House has the chance tonight to vote on proxy voting, the panel, arrest versus charge and the scheme itself. It is for the House to decide that. It is a sorry situation that the hon. Gentleman would paint this to be something it is not. It shows a distinct lack of situational awareness.