Risk-based Exclusion

Rehman Chishti Excerpts

Monday 13th May 2024 Commons Chamber

[Sir Jacob Rees-Mogg]

I am saying that it would be ineffective because a right hon. or hon. Member would simply maintain the right to turn up. There would be no power to arrest that person when turning up, therefore what would we do next, and what would we do if a person so outraged by the allegation said, “Well, I’m going to call a by-election, stand for Parliament and be returned”?

A general election is coming in the next few months. What would we do if a Member subject to this procedure were reselected by his constituency association and returned? By ancient principle, a Member who is returned cannot then be barred for something that happened in the last Parliament. Are we going to start saying, “The people of constituency X have duly voted in somebody who we suspended in the last Session, and who we are going to re-suspend”? Just before the last general election, Keith Vaz was subject to a report that was not entirely in his favour. Everyone recognised that that suspension could not carry over a general election.

[Rehman Chishti (Gillingham and Rainham) (Con)]

I have immense respect for my right hon. Friend’s knowledge of constitutional matters. As an excellent former Leader of the House, why does he think that the Government have introduced an unconstitutional measure, rather than apply the due court process by having the House of Commons make the decision?

[Sir Jacob Rees-Mogg]

It is because we have become confused about the limits of exclusive cognisance. The House has exclusive cognisance about its own affairs, but acting as the whole House. Look at the case of the exclusion of Bradlaugh. That was an action of the whole House. What did we do when Bobby Sands was elected to Parliament? We changed the law so that people subject to a criminal sentence could not stand for Parliament. We did not try to set up some approvals committee that would decide who could put their name forward; we followed a proper constitutional process. To answer my hon. Friend, I am astonished that our learned Clerks, who must have advised on this, have allowed such an extraordinary power grab by Standing Orders to undermine a fundamental of our constitution.

I know that when Members of Parliament talk about privilege it sounds as if they are talking about themselves, but it is about our constituents’ right to be represented. They are not represented only by votes. Indeed, most of the time they are least represented by votes, which go the way of the Government majority, with one vote more or less not making a hap’orth of difference. They are marginally represented by written questions, but not much. I have given answers to written questions; sometimes they seem to be as unilluminating as possible. I always tried to improve the illumination where I could. The real representation is in this very room. It is not even in Westminster Hall or in Committee; it is in this great cockpit of debate. A cabal taking away that right is against the constitution.

I will make a couple of little points about the proposal. I do not have a strong view on whether the term should be “arrested” or “charged”, as long as the process is proper and constitutional. I think that it would be perfectly fair even if it was automatic, if it were done by a proper constitutional process. That is not really the issue, but I think that what is proposed is deeply unfair. I will point to two things.

First, the panel will not be given the name of the Member being risk assessed. Dare I say, tell that to the marines. We know in this place that it is inconceivable that a panel of two Deputy Speakers and a panjandrum would not know the name; we would all have been told it by the Lobby correspondents. That is how I find out everything that goes on here, usually from The Mail on Sunday, which has a hotline to what is going on. Those on the committee would know very soon, so that seems to me to be phoney, and not recognising reality.

Secondly, the report states that

“Members must not lobby the Panel…We carefully considered whether a Member subject to risk assessment should have the right to make representations”.

If someone is being risk assessed, how can they maintain that they are low risk if they are not allowed to represent themselves? I think it is extraordinarily unfair that they will be tried in absentia by a cabal, undermining the rights of their constituents. If we want to do this, let us find time for legislation, and let us do it properly.

--- Later in debate ---

[Sir Philip Davies]

Well, the point is that that is a voluntary process. As my right hon. Friend the Member for North East Somerset has made clear, if somebody feels that that is not a suitable process, they can come in here. This is about us formally excluding people from here. That is a very different issue altogether—one that we should not take lightly; and one that, I suspect, is being taken too lightly.

[Rehman Chishti]

Will my hon. Friend give way?

[Sir Philip Davies]

I will not, because others want to speak and I do not want to take their time.

I will raise two other points. My hon. Friend the Member for Amber Valley (Nigel Mills) is absolutely right about the fact that when this motion was originally tabled, it was about arrest, and the Government have just changed the wording to “charged” but kept the rest of it in place, which is completely unsatisfactory. Personally, for the reason that I have given, I would get rid of the panel altogether, because I suspect that the outcome would be the same on every single thing, whether arrest or charge, to be perfectly honest. I am not entirely sure what the point of the panel is. My hon. Friend is absolutely right to say that when the matter relates to a charge, the panel is completely unnecessary, and we should get rid of it.

--- Later in debate ---

[Sir Michael Ellis (Northampton North) (Con)]

I rise to support the Leader of the House’s motion, and it is a pleasure to follow the powerful argument made by the hon. Member for Birmingham, Yardley (Jess Phillips).

I speak as a former Law Officer of the Crown—Attorney General under two Prime Ministers and Solicitor General before that—but perhaps more relevantly, as a practising barrister in the criminal law field for 17 years before I was elected to this honourable House. I very much accept the need to protect the people working here—of course, I do—and that includes other Members, staff of the House, staff of Members, visitors and everyone else. I personally prosecuted cases, and I think I am the only speaker on either side today who has actually prosecuted sexual offences and defended them in court over a 17-year period before 2010.

I care about these issues from a professional standpoint, and I want to speak about that aspect, but also about the constitutional aspect. I agree very much with my right hon. Friend the Member for North East Somerset (Sir Jacob Rees-Mogg). After all, Charles Bradlaugh, to whom he referred, was the Northampton MP in the 1880s. He was repeatedly excluded from this House for refusing to swear the oath—at the time, one could not affirm—and that is a constitutional point about how the House maintained its right to reject someone who had been voted in to serve in this House.

There is a key principle here—a golden thread—that runs through our system, which is that a person must not suffer imposition before guilt has been proven. It is offensive to the laws of national justice and, in fact, contrary to human rights to do so. There is a principle, and this principle is ancient. In fact, it dates back to the ancient Romans. Later than ancient Rome, the 6th-century “Digest” of Justinian cited the general rule of evidence, which I was taught 30 years ago in my law degree, which is that a person is innocent until proven guilty. Everything we do in this House must be based and predicated on the principle that proof lies on him who asserts, not on him who denies. That is the legal principle, which in Latin is “Ei incumbit probatio qui dicit, non qui negat”, and when it was mentioned in the 500s AD—over 1,500 years ago—it referred back to Roman times.

That is how ancient this principle is—it was introduced to Roman criminal law by the Emperor Antoninus Pius—and it has become part of the constitution of this country. What we do in this House is predicated on our constitutional principles, as my right hon. Friend the Member for North East Somerset said and as the hon. Member for Rhondda (Sir Chris Bryant), as a historian of this House, will also know. However, it is not just that it is ancient; it is important that even the Hebrew Talmud has said that a person is innocent until proven guilty, and I have read that the presumption of innocence is fundamental to Islamic law. The principle that the onus of proof is on the accuser or claimant is strongly held, based on a hadith documented by Imam Nawawi in the 13th century. Everything we do here should look to that, as in Blackstone’s “Commentaries on the Laws of England” of the 1760s, which are still taught today, when it states:

“It is better that ten guilty persons escape than one innocent suffer.”

Having spent 17 years at the Bar practising criminal law—prosecuting and defending—before being elected to this place, I strongly agree with that sentiment.

[Rehman Chishti]

I also prosecuted and defended in the criminal courts before coming to this place, and I of course accept “innocent until proven guilty”. Indeed, I have dealt with cases in which individuals have been accused and then found to be not guilty at the end, so I will save my question for the constitutional point that has been raised. If the constitutional point is that this is unconstitutional, after that everything else falls, does it not?

[Sir Michael Ellis]

My hon. Friend has made his point, and I am conscious of your admonition about time, Madam Deputy Speaker, so I will move on.

I would say that the bar—the legal test—for a constable arresting an individual is necessarily very low. A mere suspicion is sufficient, or what is called a reasonable belief. That belief could turn out to be wrong, and many people arrested are never charged, while in fact many people who are charged are never convicted. This is not about MPs; it is about the principles of justice, at least it is for me. To admonish or to punish individuals in relation to their work in the public interest, which is what MPs of course do, on arrest is wrong. It may also very well encourage malicious complaints, and let us not forget that there is a history of that.

I will cut my remarks short, bearing in mind your admonition, Madam Deputy Speaker. I want to emphasise that my remarks, coming as they do from a lawyer, are necessarily perhaps rather legalistic and constitutional, but they are no less passionately held. I have great respect for those on both sides of the House who have spoken as they have. We all care about justice, we all care that right is done for all and we care about victims being treated properly. However, in my respectful submission, we must avoid breaching long-established rules of natural justice, which are part of our constitution. Otherwise, history will look back on us as it does on other periods of historical unfairness and injustice. We must maintain our historic fairness. I support the Leader of the House’s motion.