House Committee

Lord Brabazon of Tara Excerpts

Tuesday 20th December 2011 Lords Chamber

Moved By

[The Chairman of Committees]

To move that the 2nd Report from the Select Committee on Recovery of money wrongly claimed by Members (HL Paper 238) be agreed to.

[The Chairman of Committees (Lord Brabazon of Tara)]

My Lords, this is a simple report that we hope will constitute the final element of the House’s response to the expenses scandal. As noble Lords will be aware, the House has already dealt robustly with those Members found to have abused the system of financial support. However, the House Committee felt it important to ensure that any Members who have not repaid the wrongly claimed money are prevented from returning to the House until they have done so. I hope that noble Lords will agree that it would be inappropriate to restore to such Members the privilege of taking part in the important work of this House and the right to claim financial support until they have settled their debts to the public purse in full.

Accordingly, this report proposes that any Member who is found by the House to have wrongly claimed money under the system of financial support but has not repaid all of that money by one month before the end of their suspension from the House should receive a further suspension until the money has been paid in full or until the end of the Parliament, whichever comes first. If the debt were still outstanding at the beginning of the following Parliament, then the House would be invited to approve a further suspension and so on. The suspension of an individual under these provisions would be imposed by the House agreeing a Motion in the name of the Chairman of Committees.

I should just mention the role of the Committee for Privileges and Conduct, which I chair. In its sixth report of this Session, the committee stated that the recovery of debt was not a disciplinary matter and therefore did not come within its remit. The committee went on to say that securing repayment was a matter for the Clerk of the Parliaments, consulting the House Committee which oversees the system of financial support for Members. The Clerk duly consulted the House Committee, which noted that the Committee for Privileges and Conduct had concluded in its 2009 report on the powers of the House as follows:

“The House possesses … an inherent power to discipline its Members; the means by which it chooses to exercise this power falls within the regulation by the House of its own procedures”.

In line with this conclusion, the House Committee is now inviting the House to use its existing powers in a new way. I believe that our proposals are appropriate and I commend them to the House. I beg to move.

[Baroness Scotland of Asthal]

My Lords, I have to tell the House that I am troubled by the Motion that is presented to the House. I am troubled on two bases.

First, I am unclear as to whether the House intends the Motion to have retrospective effect and thereby to reopen decisions made by this House during 2010. Noble Lords will know that a number of cases were dealt with by the Committee for Privileges and Conduct, whose members at that time included the noble and learned Lords, Lord Mackay of Clashfern, Lord Howe of Aberavon—who sits in his place and whom I, too, wish happy birthday—Lord Scott of Foscote and Lord Irvine of Lairg. The decisions arose out of the complaints made by and against a number of Members of this House during 2009. All those complaints were dealt with under the code of conduct made in the fourth report of Session 2007-08, to which I shall now refer as the report on procedure.

The House knows that there was a broad spectrum of complaints about the way in which expenses were claimed by some Members of this House. Each complaint was dealt with on an individual basis and differently. Some Members were asked to apologise in writing; some were asked to apologise to the House; some were dealt with by the Clerk of the Parliaments; some came before the Committee for Privileges and Conduct sub-committee; some came before the full committee; some were dealt with by the police; and some Members were tried and sent to prison. All those cases were dealt with under the old procedure. The variations in treatment are difficult to explain shortly, but it is unnecessary for me to go through that history because this House decided, I believe properly, to institute a new, clear and transparent system by which Members would be entitled to receive expenses.

Transgression of the new rules should be clearly and robustly dealt with. Therefore, if the House Committee’s recommendation is meant to refer to any future transgression under the new system, I can see the merit of making the position crystal clear to Members as we go forward so that Members will know, if sums are improperly claimed, a Member’s return to the House during that Session of Parliament will not be considered until full repayment has been rendered. There will then be no scope for misunderstanding of the rules. However, if the recommendation is intended to have retrospective effect, I have to confess to your Lordships that I have a problem.

The House will recall that in the hearing before the Committee for Privileges and Conduct, the issue of whether there should be a separate sanction for non-payment of moneys improperly received by a Member under the old system contained in the report on procedure was dealt with. The committee said this at paragraph 56 on page 20—and with the leave of your Lordships I intend to quote it in full:

“As a point of principle, and regardless of the circumstances of the present case, we have decided that the length of suspension should not be determined by reference to the time of repayment. Repayment is not a sanction: it is an act of restitution, the returning of money wrongly claimed and paid. The over-riding priority must be that this money should be returned to the House, and thus to the public purse. Lady Uddin’s appeal makes the point that she does not have the means to pay so large a sum. We are not in a position to comment on her financial circumstances, but it is clear that the sanction recommended by the Sub-Committee risks having the effect of preventing her indefinitely from returning to the House. Not only is there a danger that an ‘indefinite suspension’ could exceed the powers of the House, which are limited to suspension ‘for a defined period not longer than the remainder of the current Parliament’, but there is also a possibility that an indefinite suspension would result in the money never being recovered”.

I believe that the Privileges and Conduct Committee’s analysis was right in law and in principle. The House endorsed its conclusion, which was proper. The decision of the House was then communicated to the parties. It is contained in full in the sixth report of Session 2010-11, published on 21 October last year. Therefore, the House was specifically asked to determine the issue of principle as it related to the old system and came to a definitive view. I would be troubled indeed if, by this Motion, the House purported to resile from this principle on a retrospective basis. In my view, that would be improper.

The issue of whether a further suspension could be imposed in respect of the non-payment of moneys due came before the newly constituted Privileges and Conduct Committee, of which I am now a member. On 31 October this year, the committee was invited by the House Committee to think again and to review the recommendations made by the previous Privileges and Conduct Committee, of which I was not a member. The noble and learned Lords, Lord Mackay of Clashfern and Lord Scott of Foscote, and I all sat on that committee. We found no basis on which we could properly disagree with the previous committee's legal analysis or with the principles enunciated in the report. The Privileges and Conduct Committee specifically includes Members of this House with a legal and judicial background in order to assist the House by making recommendations that are consistent with the rule of law and with fairness.

The second issue that troubles me is whether the House, by using the stratagem of a Motion, intends to circumvent the prohibition that exists in law on suspending a Member of this House permanently. As Members will know, chapter 12.12 of the Companion states:

“The House of Lords does not have the power to suspend a member permanently. A writ of summons, which entitles members of the House to a ‘seat, place and voice’ in Parliament cannot be withheld”.

I respectfully suggest that we should not set ourselves up in opposition to Her Majesty's writ—not least because there is no appeal against our determination. Any suspension imposed by the House can only be temporary and can last only for the duration of one Parliament. I can find no lawful authority that entitles us to act to the contrary. Nor am I aware of any other provision that would enable us so to do.

I am well aware that a sizeable number of Members of your Lordships' House would like the position changed. There is merit in saying that, where a Member has so transgressed as to make it intolerable for them to continue to be a Member of the House, legal provision should be made for their expulsion. But that can be done only by legislation, which we do not currently have.

Therefore, I invite the House to decline to accept the House Committee’s recommendation in its current form. If the House wishes to send a clear signal in the future, and I think that it should, there is force in us so doing. However, this Motion should not have retrospective effect and neither should it apply for more than one Parliament unless and until legislation is passed to enable us lawfully to implement a permanent suspension. Your Lordships know that there is no appeal from this House—none at all, not to the EU, not to our courts. We determine our own procedure, we determine what is right, and therefore a heavy burden is put on us. If we wish to be unfair, unjust or immoderate, we are entitled to be so. I know this House too well to believe that that would ever be our intent, so I invite the House not to make a decision in relation to this Motion and to give the House an opportunity to think again.

--- Later in debate ---

[Lord Laming]

My Lords, I will not detain the House for more than a few minutes because I support the Motion that is before it. The House will know that I have been a member of the relevant committees for only a relatively short time, but I bring to them many years, sadly, of experience of dealing with disciplinary matters in the public services. Sad to say, that experience has taught me that these matters often involve conflict and sometimes considerable distress, which is made more serious when the people involved may be known to us personally.

However, I have an overriding impression of the way in which the House Committee has dealt with this matter and I support entirely the comments made by the noble Lord, Lord Baker, in saying that the committee has approached this matter from the point of view of principle, not from that of personality. It has gone out of its way to try and be fair, but every Member of this House will know that being fair in these circumstances is not a simple matter. Of course, one wants to be fair to the individuals involved but there is also an issue of being fair to your Lordships’ House and, more than that, of being fair to the taxpayer. The money does not belong to your Lordships’ House; it belongs to the taxpayer and it should be returned to the taxpayer.

Over the years, sad to say, I have dealt with many instances when taxpayers’ money has been wrongly claimed. The first responsibility of any organisation dealing with matters of this kind, particularly a public organisation, is to seek to recover the money—and to seek to do that recognising that it has to make a decision in the circumstances in which it now finds itself. I believe that the House Committee has both been reasonable in these matters and adopted a stance which tries to be fair and to reflect the seriousness with which the public would view this situation if we did not endeavour to recover the money. This does not imply permanent suspension from the House. I commend the Motion to the House because I believe that it is a reasonable, fair and sensible course of action to take.

[The Chairman of Committees]

My Lords, perhaps the House feels that we should come to a conclusion on this matter now. I feel a little daunted in facing the first three noble and learned Lords who spoke in the debate, particularly the noble and learned Baroness, Lady Scotland, but I am glad to say that some of the points that were made have already been answered by other noble Lords.

On the question of retrospectivity, which the noble Lord, Lord Pannick, answered very well, this is not retrospective because the sanctions agreed by the House last year related to the original breach of the expenses scheme. The House is today being asked to approve the principle that any Peers who subsequently fail to repay the money which they have been found to owe should be suspended for that reason and that reason alone. I should say to the House that this is a report in generality, not a report about any particular Peers, so I rather regret that a number of names have been mentioned at this stage. That may or may not come up later; as the report says, a further Motion will have to be moved in the new year.

The second point related to the Privileges and Conduct Committee. It is true that that the committee did not believe that the length of suspension which it recommended should be determined by reference to repayment and that it rejected the idea of an indefinite suspension. However, the House Committee’s proposals to suspend Members until they have repaid is not a second punishment for abusing the system. It is related to the failure to repay, which falls within the remit of the House. Neither is it an indefinite or permanent suspension; what we propose is a carefully defined suspension that can be ended as soon as the Member in question pays up.

Moreover, we are not thwarting the writ of summons because, as the noble Lords, Lord Pannick and Lord Alderdice, said, at no point would we be suspending a Member for a period longer than the remainder of the Parliament. A further suspension early in the following Parliament would be a separate suspension, not a continuation of the earlier one. As a number of noble Lords have said, it may be that we should legislate in future for longer than that but that would need new primary legislation.

[Lord Soley]

On that point—

[The Chairman of Committees]

I will give way once.

[Lord Soley]

The report says:

“If money remains outstanding at the start of the following Parliament, the Chairman of Committees should move a further motion to initiate a further suspension”.

I want to be clear: is the committee taking the view that in future Parliaments we should do this all the time? Is that the recommendation?

[The Chairman of Committees]

If the money had not been repaid, the issue would be up for a new Motion by the Chairman of Committees at the beginning of the new Parliament. The Peer in question would already have received their writ of summons and would be able to come to the opening and so on, but then the Motion might go ahead.

Another point made by noble Lords, particularly the noble and learned Baroness, Lady Scotland, and the noble and learned Lord, Lord Lloyd of Berwick, was that the system is discriminatory against people who do not have the money. I accept that less wealthy Members may struggle to pay off their debts to the House, but of course they should not have made their wrongful claims in the first place. Moreover, I do not think it would be right to means-test errant Members and then make special concessions to those who could not afford to pay. The House Committee believes as a matter of principle that Members who have cheated the taxpayer of money should not be allowed to take part in proceedings of the House or claim any further money until they have repaid their debt in full. How they might raise that money is a matter for them.

A number of noble Lords, including the noble Lord, Lord Richard, suggested that we should take this back and have another look at it. I will resist that temptation. As my noble friend Lord Baker said, the House Committee spent a great deal of time looking at this in detail. This is the conclusion that we came to and which I recommend to the House. I beg to move that the report be agreed.

Motion agreed.