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

Tony Baldry Excerpts

Friday 27th February 2015 Commons Chamber

[Sir Tony Baldry (Banbury) (Con)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Dawn Primarolo)]

With this it will be convenient to discuss the following:

New clause 2—Bill of Rights—

“Nothing in this Act shall be constructed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.”

This clause, modelled on section 1 of the Parliamentary Standards Act 2009, preserves the exclusive cognisance of the House of Lords over its own proceedings and membership.

New clause 3—Code of conduct—

‘(1) Standing Orders of the House of Lords may provide for the adoption of a code of conduct.

(2) 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to the relevant provision of any code of conduct which the House of Lords may have adopted and which has not been superseded by a subsequent decision of the House.”

This clause allows the House of Lords to adopt a code of conduct and also requires the application of penalties under this Bill to be linked to that code, if there is one.

Amendment 18, in clause 1, page 1, line 6, at end insert

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

[Sir Tony Baldry]

New clauses 1 and 2 stand in my name, and new clause 3 and amendment 18 are in the name of my hon. Friend the Member for Christchurch (Mr Chope).

This important Bill enables a lacuna to be filled in the procedures of the House of Lords, and to enable the House of Lords—where appropriate—to suspend or expel Members. The House of Lords currently has powers to suspend Members, but rather curiously it can do so only for the remainder of a Parliament. Therefore, if a Member of the House of Lords were to be suspended today, they could effectively be suspended only until 30 March, or whenever this Parliament is dissolved. If, on the other hand, the House of Lords decided to suspend a Member early in the next Parliament, they would be suspended for the duration of that Parliament. That is curious and it is difficult to justify why the length of suspension should vary. The House of Lords wanted to clarify that position as well as the position on expulsions. The measure had wide support in the other place, and I am sure it will win support throughout this House.

This is a somewhat thin House today. I speak not personally about my bodily weight—although, as my wife points out to me, I have a body image problem because I do not see my body as everybody else sees it—but it is a thin House because there are very few of us here. That, I think, is a consequence of five-year fixed-term Parliaments, because for the last few months, although the House has been sitting, large numbers of colleagues understandably want to be in their constituencies or elsewhere campaigning.

[Mr David Nuttall (Bury North) (Con)]

Given that in the last Session the House of Lords Reform Bill passed through this House and the other place, does my right hon. Friend know why, if these matters are now considered so important, their lordships did not see fit to amend that Bill last year to include these proposals?

[Sir Tony Baldry]

I cannot speak for what happened in the House of Lords—clearly these measures were not included in that Bill or we would not be debating them today, and I will come on to that point.

As I was saying, we may be a rather thin House, but we are also an experienced House, and looking at the right hon. and hon. Members present, I think we have well over a century of service between us. I feel a bit like one of those black and white western films, where one is at Fort Laramie and most of the people have been sent out in the middle of night to get to safety, but a few old soldiers are left manning the battlements of the business. I feel a little as though we are in that position today. My right hon. Friends the Members for North East Hampshire (Mr Arbuthnot) and for North West Hampshire (Sir George Young), myself and others, are the old soldiers who have been left behind while others are out campaigning, because we are considered to be totally expendable.

[Sadiq Khan (Tooting) (Lab)]

For the record, will the right hon. Gentleman confirm that I am a young soldier rather than an old soldier, and that I am not expendable?

[Sir Tony Baldry]

The right hon. Gentleman is a welcome young soldier to the proceedings, although he is almost a solitary soldier on his side of the House. I suppose it is a measure of the Opposition’s desperation that not one of them could afford to be in the House of Commons today because they all felt it necessary to be out campaigning somewhere.

[Sadiq Khan]

Or could it be the confidence they have in me?

[Sir Tony Baldry]

What I love about the right hon. Gentleman is his innate modesty.

--- Later in debate ---

[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.

[Sadiq Khan]

Just to reassure the right hon. Gentleman, is he aware of the comments made by Lord Brown of Eaton-under-Heywood, the Chair of the Sub-Committee on Lords’ Conduct? He must have been aware of these concerns. He said:

“I greatly welcome the Bill and the logical and highly desirable increments to the powers of the House that it would bring with it.”—[Official Report, House of Lords, 24 October 2014; Vol. 756, c. 930.]

He recognises that it will be the House that will have the additional powers, not anybody from outside the House.

[Sir Tony Baldry]

I take the right hon. Gentleman’s point. The Bill, as far as the House of Lords is concerned, is an enabling and clarifying Bill that the House of Lords intends will give it greater powers, but there is still an important ambiguity that needs to be clarified, and I will welcome the observations of my right hon. Friend the Member for North West Hampshire on that.

--- Later in debate ---

[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.

[Sir Tony Baldry]

There is an issue that the House of Lords will have to address in its Standing Orders. If a Member of that House were seriously threatened with suspension or, particularly, expulsion, would he be able to avoid that simply by retiring, under the new provisions for retirement, thus avoiding any quasi-judicial investigation into his conduct?

[Mr Chope]

We have had exactly that problem with senior police officers. As soon as they are brought to book or accused of anything, they run for cover. They retire or resign, and are then able to keep their pensions. When we deal with the next group of amendments, we shall discuss the question of whether the Bill should apply to both expulsion and suspension. I think that there should be a distinction between them, but I will not anticipate that later discussion.

As is already clear from the short debate that we have had so far, this is an extremely complex matter, and the idea that it could become law without being properly thought out fills me with horror. The fact that most members of the general public will not be writing letters saying how outraged they are by the potential consequences of the Bill does not mean that we should not pay great attention to its implications, not least because it impinges on our constitution. At one stage during the current Parliament, the Government were taking the line that they did not want any more piecemeal reform of the other place, but they seem to have shifted their position a bit. Perhaps the Minister will explain a little more about the Government’s policy in a moment, but I think that, unless it is amended, what we have before us could be very dangerous to our democracy.

--- Later in debate ---

[Mr Wilson]

It is a pleasure to be here on a Friday. This is not something that I have often been able to do in the past. It is also a pleasure to be able to listen to some of the older generation sallying forth, as my right hon. Friend the Member for Banbury (Sir Tony Baldry) might have put it.

[Sir Tony Baldry]

For the older generation, sitting on Fridays is a regular occurrence. We are often here, Friday after Friday, as well as doing our constituency work. Indeed, I made my maiden speech on a Friday. As for the idea that being here on a Friday is somehow exceptional, for us it is part of our natural life, as were all-night sittings.

[Mr Wilson]

I meant that being here on a Friday was exceptional for me, not for my right hon. Friend. Perhaps I did not make my point clearly. It has been a pleasure to listen to him and to the others who have been making contributions today. It has been great to see some of the hon. Members who come here on a Friday in action. It has been a particular pleasure to hear my hon. Friends the Members for Christchurch (Mr Chope), for Shipley (Philip Davies) and for Bury North (Mr Nuttall), as I have heard much about these Friday sittings.

--- Later in debate ---

[Sir Tony Baldry]

I am very grateful to both the Minister and my right hon. Friend the Member for North West Hampshire (Sir George Young) for their remarks. I had not realised that this was the Minister’s first outing on a Friday. He gave a clear explanation from the Dispatch Box of the true position, and if he had been given more Friday outings we would probably have got through business rather more quickly. In the next Parliament I hope he will have many more such outings at the Government Dispatch Box. I am extremely grateful to my right hon. Friend for his lucid explanation, which met my concerns on both natural justice and cognisance. On the basis of the explanations given, I beg to ask leave to withdraw the clause.

[Mr Chope]

My new clause 3 is in the same grouping. As it is well precedented in the 2012 Bill, which did not make much progress, I wish, if it is possible, to test the will of the House on it.

--- Later in debate ---

[Mr Chope]

Effectively, amendment 1 seeks to remove from the Bill any reference to the expulsion of Members of the House of Lords, which means that the Bill would relate only to their suspension. The reason why I wish to circumscribe the Bill in that way is that the main point of the Bill is to make the House of Lords’ powers relating to Members’ suspension more consistent. On that, I agree with my right hon. Friend the Member for North West Hampshire (Sir George Young). Where I disagree with him is over the use of the expulsion power.

When this Bill was originally put forward, it was said to be very minor and technical, but as one of their lordships said, the expulsion power was certainly not about routine housekeeping. The power to expel Members from the other place is a fundamental interference in the constitutional arrangements of our country; people are appointed to the other House for life, or they are elected as part of the cohort of elected peers. To expel such a person is an extreme measure.

Following the House of Lords Reform (No.2) Bill, which was introduced by my hon. Friend the Member for North Warwickshire (Dan Byles) and passed into law, the House of Lords and this House effectively have the same powers of expulsion. That includes ensuring that anyone who is convicted of an offence that results in imprisonment for more than one year is expelled. In this House, we have not expelled anyone for a very long time. A number of people, following critical newspaper reports, have chosen not to stand again, or even in extremis to resign their seat, but expulsion is a draconian sanction. Introducing it in this Bill is unnecessary; it is over-egging the pudding. That is why I hope that my right hon. Friend the Member for North West Hampshire will accept my amendment. Essentially, all the amendments in the group deal with the same issue, which is the conduct that gives rise to potential expulsion from the House.

Amendments 2, 7, 6, 19, 8, 9 and the others are worth considering because they tighten up the Bill and bring it more into line with what would be regarded as fair and reasonable. Rather than spending a lot of time going through them, I would prefer to see whether we can persuade my right hon. Friend, the promoter of this Bill, to drop the expulsion power. As was said on Second Reading and Report in the other place, this is a power that the Lords hope that they will never have to use, but the danger is that if it is available and can be used in relation to a wide range of conduct, people might be expelled from the Lords in circumstances in which they would not be expelled from this House.

Let us consider the interaction between this Bill and the recall Bill. The recall Bill gives electors the power to vote when a Member’s conduct falls short of what is expected but would not give rise to a sentence of imprisonment of more than one year. If we are to link in with that, it would be best to do away with the expulsion provisions and rely on the suspension provisions instead. Under the suspension powers in this Bill, the other place would be able to suspend Members for five years or more. If a Member was suspended for that length of time and felt that justice had been done, they might well choose to resign. That is a different issue, but given the constitutional implications, it would be a step too far to give the other House the power to override our constitution by expelling somebody who has been appointed a peer of the realm for life, or an elected hereditary peer. If we want to go down that route, we should not do so on a Friday through a private Member’s Bill.

As with so many powers that have been taken, people say that they will never have to use these powers. We were told, when certain legislation was originally introduced, that it would be used only to proceed against terrorists, but as the years went by we found that the rules became rather different. People forget the basis on which the law was introduced. The lack of safeguards in this Bill about the conduct that would give rise to expulsion means that it would be much cleaner to remove references to expulsion from it. Some of my amendments would therefore ensure that the Bill was called not the House of Lords (Expulsion and Suspension) Bill, but the House of Lords (Suspension) Bill.

[Sir Tony Baldry]

I have a number of amendments in this group, but before I come to them, as they deal mostly with suspension, may I comment on the observations made by my hon. Friend the Member for Christchurch (Mr Chope) about expulsion? There is the question of consistency. The House has already agreed, through the previous group of amendments, that so far as is possible the House of Lords should have cognisance of its own matters. In other words, the House of Lords should control what happens in it. Unless there are compelling public policy reasons for doing so, it is difficult to argue, now that the House of Lords has agreed that it requires a power of expulsion, that this House should seek to frustrate the House of Lords’ having that power. As will have been clear to those of us who read the report of the Second Reading debate in Lords Hansard, there is cross-party support in that House for a power of expulsion.

Of course, it has always been possible to expel Members of the House of Lords; it is just that sometimes it has been done in slightly curious ways. I am a great supporter of some of the things done by Thomas Cromwell. I have always felt that what Ministers require is grip, and he certainly demonstrated grip. Poor Thomas Cromwell was arrested in June 1540, and a Bill of attainder passed in the House of Lords provided for his punishment without judicial trial. As we know, he was eventually put to death.

Lord Lovat, whom I mentioned earlier, was impeached for high treason in this House and found guilty by the House of Lords. Indeed, he suffered the ignominy of being hung, drawn and quartered—no one is suggesting, of course, that any Member of the House of Lords who might be expelled in future should suffer such a fate. In his judgment against Lord Lovat, the Lord High Steward said:

“The Commons found your Lordship to be one of the principal Conspirators, who contrived and carried on the late detestable Rebellion, to destroy our Religion and Liberties, and to subvert that Legal Settlement of the Crown in His Majesty, and His Royal Family, under which alone we can live Free and Happy.”

Other ways have been found of removing Members of the House of Lords. Impeachment was a procedure used by both Houses, under which all peers could be prosecuted and tried by the two Houses for any crime whatsoever. The House of Commons determined when an impeachment should be instituted. It related largely to high treason, but it could relate to other crimes and misdemeanours. There was a whole process involving the two Houses that could lead to the expulsion of a Member of the House of Lords.

Members of the House of Lords could also be expelled by a specific Act of Parliament. The last such Act was the Titles Deprivation Act 1917, which deprived enemy peers and princes of their British dignities and titles. Section 1(1) states:

“His Majesty may appoint a committee of His Privy Council, of which two members at least shall be members of the Judicial Committee, to enquire into and report the names of any persons enjoying any dignity or title as a peer or British prince who have, during the present war, borne arms against His Majesty or His Allies, or who have adhered to His Majesty’s enemies.”

No fewer than five members of the House of Lords were expelled under that Act, including three Royal Highnesses—His Royal Highness Leopold Charles, Duke of Albany; His Royal Highness Ernest Augustus, Duke of Cumberland; and His Royal Highness Ernest Augustus, Duke of Brunswick—and Viscount Taaffe of Corren. Therefore, on numerous occasions in the past it has been perfectly possible to expel Members of the House of Lords when that has been found necessary. We in this House have that power, and it seems perfectly sensible that the House of Lords should have it too.