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

Philip Davies Excerpts

Friday 27th February 2015 Commons Chamber

[Mr Christopher Chope (Christchurch) (Con)]

I thank my right hon. Friend the Member for Banbury (Sir Tony Baldry) for introducing his new clauses and emphasising the importance of natural justice.

New clause 3 and amendment 18 link in with the theme already established in our discussion of new clauses 1 and 2. The Bill essentially concerns the conduct of Members in the other place—the noble Lady Baroness Hayman on Report called it a disciplinary Bill—and it was in that context that I tabled my new clause and amendment. At the moment, there is a lacuna in the drafting: there is no linkage between the provisions in clause 1 on conduct and the House of Lords’ code of conduct. Subsection (1) reads:

“Standing Orders of the House…may make provision”

to

“expel…or…suspend a member…for the period specified in the resolution”.

Subsection (4) reads:

“A resolution passed by virtue of subsection (1) must state that, in the opinion of the House of Lords, the conduct giving rise to the resolution…occurred after the coming into force of this Act, or…occurred before the coming into force of this Act and was not public knowledge before that time.”

The clause does not, however, spell out what that conduct should amount to, and that is why new clause 3 would link the provision to breaches of the code of conduct of the other place:

“Standing Orders of the House of Lords may provide for the adoption of a code of conduct… A resolution passed by virtue of section 1(4) must include a reference to the relevant provision of any code of conduct which the House of Lords may have adopted and which has not been superseded by a subsequent decision of the House.”

Amendment 18 would insert at the end of line 6, page 1, clause 1, the words

“on the ground of that member’s conduct as set out in the resolution”.

Under my proposals, it would not be possible to use the extensive powers in the Bill other than in respect of breaches of the code of conduct in the other place.

It is important to put that safeguard in the Bill, given comments bandied around by Members of the other House. On Report, when discussing clause 2, the noble Lord Wallace of Saltaire—

[Philip Davies (Shipley) (Con)]

A constituent of mine.

[Mr Chope]

I am delighted to hear that he is one of my hon. Friend’s constituents. I am sure it is just as well he does not have the chance to vote for my hon. Friend.

The noble Lord Wallace of Saltaire said:

“I read the latest Code of Conduct again this morning, thinking that we need to be sure what we are on about”—

I think that is always wise advice. He continued:

“One of the issues that perhaps we need to discuss informally off the Floor is how far this measure is intended to refer only to conduct that is mentioned in the Code of Conduct or to egregious conduct of other sorts conducted by Members of this House. However, that is a question that we need not have in the Bill itself, but it is certainly a question that the Committee for Privileges and Conduct and others will need to consider at a later stage”.

I think this issue should be considered in the Bill. If we are to enable expulsion or suspension from the other place on the basis of breaches of conduct, we need to know whether the conduct needs to be linked in with the code of conduct under the Standing Orders or whether the provisions apply, as the noble Lord put it, to

“egregious conduct of other sorts conducted by Members of this House”.—[Official Report, House of Lords, 21 November 2015; Vol. 757, c. 650-51.]

In discussing these issues, people sometimes bandy about expressions such as “bringing the House of Lords or Parliament into disrepute”. Judgments about areas of conduct or behaviour can be extremely subjective. I hope that the promoter and indeed the Government, who have hitherto been slightly underwhelmed by the contents of the Bill, will accept that the wording needs to be much more precise than it is at present.

When the ill-fated 2012 legislation came before this House, it was withdrawn by the Government because of the threat of it being properly considered; they did not want it to be properly considered, so they decided that rather than have it considered without a guillotine, they would not have it considered at all. That Bill was withdrawn, but it made reference to suspension and expulsion on grounds of conduct, and it was linked with breaches of the House of Lords code of conduct. However, in this Bill, that has been dropped.

My hon. Friend the Member for Bury North (Mr Nuttall) inquired earlier why the provisions of this Bill were not included in the private Member’s Bill proposed by our hon. Friend the Member for North Warwickshire (Dan Byles). The answer is—it was given by our hon. Friend—that he did not want these provisions in his Bill because he thought they were far too controversial, and he wanted to get his Bill on the statute book, which he succeeded in achieving, before he retires from this House after one term in our Parliament. Rather than venture into an area of controversy, he decided to stick to the principles contained in his Bill, which enable expulsion on the ground that a person has been convicted and sentenced to a period of imprisonment in excess of one year, rather than go into this linkage with the code of conduct or conduct defined more widely, as it might be in due course by the noble Lord Wallace of Saltaire.

People are talking about bringing the House of Lords into disrepute, so in preparation for today’s debate I tried to establish how this could be viewed as analogous to the disciplinary processes in some firms where it is a disciplinary offence for an employee to bring the company for which the person works into disrepute. Case law in this area is fraught with difficulty. It is extremely difficult for an employer legally to control the actions of an employee outside their employment, and there is often little reason why an employer would wish to do so. However, the notion of an employee bringing the company into disrepute following actions in their personal life is one situation in which the parallel might occur.

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In this particular case, Lord Rennard resigned his party Whip amid claims that he had made unwanted sexual advances to several women and touched them inappropriately. An internal inquiry into what was alleged to have happened concluded that there was broadly credible evidence dating back several years of behaviour that violated the personal space and autonomy of the complainants. When the noble Lord Wallace talks about “egregious conduct” being the subject of the sanctions contained in the Bill, does he have that sort of conduct in mind? Before this Bill makes any more progress, I think we need to be clearer in our own minds about the scope and extent of these provisions.

[Philip Davies]

My hon. Friend makes a very good point. Would tax avoidance also be relevant? It has been a topical issue of late, and it could be that Members in the other place engage in activities that are within the law, but which a majority of their lordships might find distasteful. Does my hon. Friend think that someone who was abiding by the law could fall foul of the Bill’s provisions? We could end up in a very difficult situation, with people not being sure what they are or are not allowed to do.

[Mr Chope]

My hon. Friend makes a very good point. I fear that the sort of conduct to which he refers could be regarded as conduct that brought the House of Lords into disrepute and that the person accused of such conduct could be sanctioned under the terms of the Bill. The Bill refers to the Standing Orders of the other place—it does not even cover the code of conduct—and we know that their lordships are understandably jealous of their reputation and want to maintain it in the eyes of right-thinking members of the public. I suspect that a number of them would regard the sort of tax avoidance to which my hon. Friend referred as behaviour that redounded to the detriment of other Members of that place.



However, we are not talking about a firm of accountants. We are talking about a part of the legislature of our great nation, and if we are going to restrict people’s ability to participate in it, we need to do so on a clearly defined basis rather than resorting to the ad hoc pandering to public opinion of which I am afraid we have seen a great deal recently.

For example, a number of political parties—I shall not mention any cases that may have arisen quite recently—now take the view that the best thing for them to do is distance themselves from any Member who is accused of a certain type of conduct and whose membership of his party is taken away from him, because, although it may not have been established that that conduct is in any way illegal, it might be regarded as potentially embarrassing that the accusation has been made. Such Members are suspended, or the whip is withdrawn, which is exactly what happened to Lord Rennard.

It is clear that we are increasingly moving away from a system whereby we rely on the rule of law to a system whereby the dictates of public opinion determine the outcomes of cases. That is why I think that we need to be extremely careful before we introduce legislation that would give the other place significant scope to introduce its own house rules, which could deny those Members who have been appointed or are in the other House as a result of their election as hereditary peers the opportunity to participate in the legislative process and other proceedings of the other House.

[Philip Davies]

Would not Members of the other place be making decisions about who could or could not sit there while having no democratic legitimacy and, perhaps, having some dubious motives for making those decisions?

[Mr Chope]

My hon. Friend has made another good point. When we look beyond the immediate subject of the debate, we see that there is pressure to reduce the numbers in the other place because the Government have been increasing the number of appointments to such an extent that I have complained. Indeed, my House of Lords (Maximum Membership) Bill is on the Order Paper today, although it is, of course, being blocked by the Government. It would restrict the Government’s ability to increase inexorably the membership of the other place.

At present, because of the pressure of numbers, the House of Lords is creating what is almost a culture, aided and abetted by the current Lord Speaker, who has said that she will retire at a particular time in an attempt to set an example to others. The implication is that when they reach a particular age, they too should choose to retire. That is entirely outwith our constitution. However, if the Bill were passed, any Standing Orders passed by their lordships requiring Members not to stay on beyond the age of, for instance, 70 or 75, could mean that a Member who refused to give up their seat would be the subject of the sanctions specified in the Bill, namely expulsion or suspension.

--- Later in debate ---

We need to be clear from when the provisions run, so that there is no ambiguity. The principal purpose of the legislation is to enhance public confidence. To achieve that, there needs to be clarity about the provisions and about the sort of conduct that will result in suspension. Comments made on Second Reading in the House of Lords suggested that some conduct outside the House of Lords might give rise to suspension, but I do not believe that is what the Bill intends. I would be grateful if my right hon. Friend the Member for North West Hampshire (Sir George Young), who is the Member in charge of the Bill, and the Minister could address these points and the amendments, so that we are clear about when the clock starts to run in relation to conduct meriting suspension or expulsion under the terms of the Bill.

[Philip Davies]

I shall be characteristically brief in my comments on this group of amendments. There is a great deal of merit in the amendments tabled by my hon. Friend the Member for Christchurch (Mr Chope) and my right hon. Friend the Member for Banbury (Sir Tony Baldry) in this group and they deserve closer scrutiny.

My hon. Friend the Member for Christchurch proposed amendment 1, and I have a great deal of sympathy for the points he made about expulsion. His amendment is made even more persuasive by the fact that his new clause 3 was defeated in the Division earlier. If the new clause had been accepted in the previous group of amendments, amendment 1 may not have been necessary. In the circumstances, I think it is necessary.

My hon. Friend has said that the punishment is draconian, which, of course, it is; it does not get much more draconian than expulsion from a House. I share his concern that the definitions of conduct that will lead to expulsion are not sufficiently tightly drawn. This is about whether we think that expulsion is an appropriate sanction and about the democratic accountability and legitimacy of Members of the House of Lords to make such decisions. My right hon. Friend the Member for Banbury touched on that issue when he moved new clause 1 and it is also addressed by amendment 1.

As my hon. Friend the Member for Christchurch has rightly said, the decisions about who is made a life peer are not made by Members of the House of Lords, because life peers are appointed. Given the circumstances, it should not necessarily be for the House of Lords to determine whether someone should continue to be a life peer. There may be some merit in asking the person who appointed them in the first place whether they would have appointed them had they known everything they know now and whether the appointment was justified at the time. I am not entirely sure that the House of Lords is the appropriate body to second-guess what the person who appointed them had in mind when making the appointment in the first place.

I fear that people who are appointed for good reason may find themselves on the wrong end of a decision, not because the person who appointed them or Members of this House, who have democratic legitimacy, think they should be expelled, but simply because their actions did not meet the taste of Members of the House of Lords at a particular moment in time.

I have always been a strong supporter of the House of Lords, as shown by my votes in this House. I have always shown myself to be a strong supporter of the status quo; as a Conservative, I rather like the status quo and enjoy voting for it. I have to accept that I shall never be subject to any of the decisions under discussion—there is no self-interest at play here. I am surrounded by people who are much more likely than me to be affected by future decisions in the House of Lords. However, my support for the House of Lords, and the good sense I always thought it previously exercised, has been tested somewhat by some of its recent decisions. I no longer have the same faith that Members of the other place will continue to make wise decisions.

One reason for that is that, instead of being composed of people of great experience and expertise, the other place seems to have become a haven for failed parliamentary candidates who could not get elected and have therefore been shoved into the other place. That has undermined not only its legitimacy but my confidence in its being able to make sensible decisions about the basis on which peers should be suspended or expelled. Therefore, it would be sensible to have as much rigour as possible so that peers cannot make decisions that we would find completely unacceptable. The Bill as drafted does not make the case that the House of Lords should have the power to expel a peer who was appointed by somebody else and without allowing anybody else to have any input into the decision. That is a dangerous game to play and I do not think that the House of Lords has the democratic legitimacy to be entrusted with that decision. That is why I think that amendment 1 is very sensible.

Largely for reasons of time, I do not intend to speak to all the amendments in this group, because that would be time-consuming, but I want briefly to touch on a few that have a great deal of merit. They are amendments 8, 14 and 15, tabled by my right hon. Friend the Member for Banbury, who spoke in some detail about whether the behaviour that may lead to expulsion or suspension happened before or after the person involved became a Member of the House of Lords.

Clause 1(4)(b) introduces retrospective legislation—we should always be wary of doing so, although it may well be justified—and that demands at least that there should be a debate and that somebody should make the case for it. The clause states that people can be expelled or suspended if the action in question

“occurred before the coming into force of this Act and was not public knowledge before that time.”

I know, or I think I know, what my right hon. Friend has in mind. I guess that some people would call it the Jimmy Savile issue, although he was obviously not a Member of the House of Lords. He has in mind actions committed by someone before they got a title and that were not known at the time; once that person has a title and those actions become public knowledge, they are deemed so outrageous that the only possible course of action is for the person to be expelled. I suspect that that is what my right hon. Friend has in mind, and many people in the country would support that on the basis of such an extreme example.

My concern is that the provision is not limited simply to such extreme actions. There are shades of grey in all such areas, and I fear that its retrospective nature may come back to penalise people who did something that was not unlawful at the time. Clearly, the actions of Jimmy Savile were not only completely unacceptable but unlawful, but my concern is that the provision may be used against people who have done something that was not unlawful and may not even have been unacceptable at the time, but has become unacceptable with the passage of time. We all know that what the public will tolerate moves on over time: things that were seen as perfectly reasonable 100 years ago are now quite rightly seen as completely unacceptable. As things move on with time, it may well be that people get caught out by actions that were once seen as reasonable but are no longer seen as such.

Allowing the House of Lords to expel people on that basis is very dangerous territory to enter. In effect, it would lead not to the rule of law, which my hon. Friend the Member for Christchurch quite rightly advocated, but to the law of the lynch mob. The Bill might give rise to the application of the law of the lynch mob in such circumstances.

My right hon. Friend the Member for Banbury is quite right to seek to leave out any reference to conduct that happened before the Act comes into force and was not public knowledge before that time in relation to expulsion: people could not be expelled for such actions, although they could be suspended for them. That is probably a very happy compromise. My hon. Friend the Member for Christchurch said that it would be draconian to expel somebody. I think it would be draconian to do so on the basis of actions that are no longer acceptable but were acceptable when they took place.

[Mr Chope]

We have yet to hear my right hon. Friend the Member for North West Hampshire (Sir George Young) respond to the debate, but my amendment 20 provides that

“nothing in this section shall authorise the expulsion or suspension of members of the House of Lords on the grounds of age, health or length of service”.

Does my hon. Friend agree that that safeguard should be the bare minimum?

[Philip Davies]

My hon. Friend is right. He anticipates my remarks, because amendment 20 is one I want to comment on, but I have not quite got to it yet. If he will show his customary patience, I will comment on it, but he is absolutely right.

I commend my right hon. Friend the Member for Banbury for amendment 15, which seeks to remove some of the uncertainty that will be introduced by the Bill. He is forensic when he looks through Bills and he has hit upon a good point. What constitutes public knowledge in relation to the Bill? All sorts of things are out there in the public domain somewhere, particularly in this day and age, with the internet and all the things one can find on Google. However, what is out there on some obscure blog or website might not be widespread knowledge.

When does something become public knowledge? Is it when it is out there somewhere and someone can point to a blog that was published somewhere or other? Could somebody use that as a defence and say, “Well, actually, it was public knowledge. It was on an obscure blog, which barely anybody reads, 25 years ago”? Alternatively, does it become public knowledge when it is much more widespread than that—perhaps when it is in the mainstream media? How can anybody be expected to know everything about everybody that may be out there in the public domain? Amendment 15 would be helpful because it would remove some of that uncertainty.

I do not know whether this is the intention of my right hon. Friend the Member for North West Hampshire (Sir George Young), but I suspect that the phrase

“was not public knowledge before that time”

might well be used by people as an escape route. The purpose might be to deal with what might be called the Jimmy Savile issue, but people like Jimmy Savile might not even be captured by the Bill, because it could be argued that accusations and revelations were out there and were public knowledge beforehand, even though they might not have been acted on. It is therefore not entirely clear whether the Bill, as currently framed, will even catch out the people it seeks to catch out.

[Mr Chope]

My hon. Friend refers to the Jimmy Savile precedent. Of course, if Jimmy Savile had been alive when the allegations came to light, he would undoubtedly have been prosecuted and sentenced to a period of imprisonment in excess of one year. I am therefore not sure that thinking about Jimmy Savile is as appropriate as thinking about people who, historically, have committed much less serious forms of what might be regarded as bad behaviour.

[Philip Davies]

My hon. Friend is right. He shows why the Bill is unnecessary and perhaps dangerous. He returns me to my initial fear, which is that people will be expelled for doing things that do not warrant expulsion, just because the tide of public opinion has gone in a different direction.

In an intervention, I mentioned tax avoidance. Somebody might have taken part in activities that were perfectly legal at the time and, in fact, seen as acceptable behaviour. Their actions might not have attracted any controversy at all at the time but, as public opinion changes, they might subsequently be seen as unacceptable. The person will be judged on that basis and may well be suspended or expelled from the House of Lords not because they did anything illegal or anything that was seen as unacceptable at the time, but because they did something that had become unacceptable. I worry that that is the dangerous route we are going down with the Bill. I predict that we will be in that situation at some point if the Bill is passed in its current form, so amendments 8, 14 and 15 are important safeguards that I hope my right hon. Friend the Member for North West Hampshire will consider.

I promised to touch on amendment 20, tabled by my hon. Friend the Member for Christchurch (Mr Chope), and I do not intend to break that promise. Because he was being even more brief than normal, he did not expand on it in any detail. It states that “nothing in this section”—clause 1—

“shall authorise the expulsion or suspension of members of the House of Lords on the grounds of age, health or length of service”.

I would like to think that all Members agree with my hon. Friend’s sentiment that people should not be expelled or suspended on that basis. He is right to be alert to the fact that if we do not tightly define the rules under which people can be expelled or suspended, we will open up the possibility, whether or not it is intended or likely, of people using the Bill as a Trojan horse to pursue a different agenda from the one that Members currently envisage.

My right hon. Friend the Member for North West Hampshire is a very reasonable man, and I am sure that he would not countenance anybody being expelled or suspended on the grounds of age, health or length of service. I am absolutely sure that that is nowhere near his mind. However, the point is not what is in somebody’s mind now, even the mind of the promoter of the Bill; it is how the Bill could be used at some future date if we do not define the rules tightly.

It may well be that because, as my hon. Friend the Member for Christchurch said, the size of the House of Lords has become completely ridiculous, people will look for an easy way to reduce the numbers. Of course, one of the easiest ways of reducing the numbers at a stroke would be to say, “Anybody above a certain age—you’re out. We’re going to take a particular point in time, draw a line, and if you’re on the wrong side of it, you’re out. If necessary, we’ll use these powers we’ve now got to enforce that new rule, because the public mood is that the House of Lords has got too big, and we’ve got to do something about it. This is the easiest way.” I really do fear that that could well happen. I am not saying that it will happen in the short term, but I can certainly see it happening in the medium term. People may pooh-pooh my hon. Friend’s amendment at the moment, scoff and say, “It’s absolutely ridiculous—that would never happen.” Well, let’s see.

[Mr Peter Bone (Wellingborough) (Con)]

My hon. Friend raises an interesting point. I suppose it could also be argued that if society moved forward and thought that legislatures had to have an equal balance of men and women, there could be a cull of male peers.

[Philip Davies]

My hon. Friend is absolutely right, and he highlights potential unintended consequences of the Bill—it could be a useful vehicle for people to use in future for purposes that were never envisaged. People can scoff and pooh-pooh the points that are being made, but who knows what decisions people might want to come to in the future and how they might use the Bill as a Trojan horse to pursue that agenda?

Amendment 20, tabled by my hon. Friend the Member for Christchurch, is certainly worth considering, and I hope that my right hon. Friend the Member for North West Hampshire will examine it and see that there is a legitimate fear about how the Bill could be used in future. Nobody is trying to scupper the Bill; people are trying to improve it and make it what we all intend it to be. I would like to think that my right hon. Friend will see that we are trying to deliver what he envisages the Bill doing. I have not heard him disagree with any of the points that have been made; he just seems to think that the things being described will not happen. That is where we might have a slight disagreement.

[Steve Rotheram (Liverpool, Walton) (Lab)]

At the start of his contribution, the hon. Gentleman said that he would be brief. Is he now straying into the uncertain waters of misleading the House?

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I think that is a job for me.

[Philip Davies]

Looking at the clock, I have been speaking for 21 minutes, which, as a regular attender on a Friday, Mr Deputy Speaker, you will agree is brief—to be honest, I contend that that is more than brief, but we all have our own standards. I will not say too many nice things about the hon. Member for Liverpool, Walton (Steve Rotheram) as it might not go down well in Liverpool—

[Mr Deputy Speaker]

I think I can help. We need to get back to the amendment, not discuss the time as that is not a worry. I want to hear more about the amendment.

[Philip Davies]

As ever you are right, Mr Deputy Speaker, and I am sorry that I was led astray by the hon. Gentleman. It will not happen again.

The amendments deliver what we all want the Bill to do—that is how I view them—and I think they are useful in ensuring that we stick to what we think the Bill delivers, rather than go beyond that. I therefore hope that my right hon. Friend the Member for North West Hampshire will agree to them. The amendments are good, and should the opportunity arise I hope that my hon. Friend the Member for Christchurch will consider dividing the House on amendment 1. I would support him in that.

[Mr Wilson]

I thank my hon. Friend the Member for Shipley (Philip Davies) for being so brief.

The Government oppose the amendments, but I will speak briefly because I want to give my right hon. Friend the Member for North West Hampshire (Sir George Young) the opportunity to push the Bill through today. Amendments 1 to 5 and 16 remove all references to expulsion in the Bill, thereby removing from the entire Bill the power to expel a peer. The Government do not support removing the power to expel. That power would allow peers to deal with particularly serious misconduct and would bring the disciplinary powers of the House of Lords more in line with those of the House of Commons.

We expect the House of Lords to need to use such powers rarely, as has been the case in the House of Commons, which has not exercised its powers to expel since 1954. Nevertheless, we think it appropriate for both Houses to have such a power in order to deal effectively with those who bring the House into disrepute.