My Lords, yet again we have had a thought-provoking and thorough debate. I acknowledge the work that my noble friend has devoted to this matter. As your Lordships know, the amendments are a modified version of those brought forward in Committee and on Report in the other place. The underlying principle behind involving the public in initiating the recall process for reasons of misconduct did indeed attract some support in the other place. Although I know that I shall not receive the approval of the noble Lord, Lord Grocott, it is interesting to see that these amendments were rejected in the other place by 271 votes to 64.
My noble friend’s Amendment 2 would remove the first and second recall conditions yet retain the third. The proposed new clauses create the concept of a parliamentary misconduct hearing, which would involve two judges examining the behaviour of an MP if the hearing received a petition alleging certain forms of misconduct that had been signed by 500 constituents. The parliamentary misconduct hearing would not be required to determine guilt to a criminal standard but rather whether parliamentary misconduct had on the balance of probabilities taken place. The noble Lord, Lord Howarth of Newport, highlighted this.
Turning to some of the detail of the amendments, the number of petitioners necessary for the parliamentary misconduct hearing to consider the allegation has been proposed at 500. The aim is to give the public some involvement in initiating the process. Of course,
if it is alleged that a criminal offence has been committed, it takes only one person to make a complaint for that to be investigated by the police, for instance. Arguably, if the complaint is valid it should be taken forward regardless of the number of complainants. On the other hand, as a test of public will, is the number of 500 constituents perhaps too low? My noble friend has explained in detail the behaviour that the parliamentary misconduct hearing is being asked to judge. I am not going to outline that further, given the time.
Criminal matters, which could include bribery and misconduct in public office, as well as offences relating to parliamentary expenses, would be investigated by the police and adjudicated by the courts. However, my noble friend proposes that criminal convictions and prison sentences should not be a trigger for recall, except for offences regarding parliamentary expenses. The trigger my noble friend proposes is a finding by the hearing that on the balance of probabilities the misconduct took place—a lower standard of proof than that used in criminal cases.
Matters that fall under the Code of Conduct can be examined by the Parliamentary Standards Commissioner, the Standards Committee and the House of Commons, which can order suspension. The proposals in the Bill are that a suspension of more than 10 sitting days could trigger recall. My noble friend’s amendments would not prevent investigation by the Parliamentary Standards Commissioner or the Standards Committee or suspension from the House taking place; they would simply decouple it from recall. So there could be a parallel process of investigation by the commissioner, the committee or the House, and a parliamentary misconduct hearing—all of which, of course, could reach different views.
I turn to parliamentary privilege, which was first raised by the noble Lord, Lord Howarth of Newport. In addition to the proposed parliamentary misconduct hearing set out in these amendments, there are the serious concerns that noble Lords have quite widely expressed vis-à-vis the interaction with parliamentary privilege. For the parliamentary misconduct hearing to have any real effect, it is likely that the judges appointed to determine misconduct would need to question proceedings in Parliament and would need to examine issues that are covered by exclusive cognisance; that is, that Parliament has sole jurisdiction over its own affairs, including standards and discipline. As the noble Lord, Lord Howarth of Newport, identified, that would be contrary to the protection afforded by the Bill of Rights; for example, the provisions in the amendments would give a role to the hearing to examine breaches of MPs’ conduct, which would impinge on exclusive cognisance.
It is also proposed that the parliamentary misconduct hearing would be able to look at issues such as cash for questions, attendance in the House and abusing or bringing into disrepute the office of a Member of Parliament—all matters which are to some extent likely to be covered by privilege. The provisions also set out standards for Members of Parliament by defining parliamentary misconduct as non-attendance in a six-month period. However, the amendments are silent on the interaction with parliamentary privilege.
Of course, Parliament does possess the ability to allow a hearing to deal with matters that fall under its exclusive cognisance, and to question proceedings in Parliament. However, if we are to take such a momentous decision, we should be fully aware of what we are doing, and there needs to be an overriding reason to do so. The problem the Government face is not being convinced that either of these conditions has been met. The type of wrongdoing covered by this alternative trigger already triggers a recall petition under the conditions in the Government’s Bill. The triggers in the Government’s Bill, whether noble Lords like the Bill or not, are intended to fit in with the disciplinary and constitutional arrangements of our Parliament.
I turn to the relationship with criminal prosecution. While the amendment contains a provision to allow for the suspension of a hearing in the case of a criminal investigation or criminal proceedings, it may be that these would be initiated only due to testimony in or judgment of the hearing. In the case of alleged criminal misconduct, if the defence had already been rehearsed before a parliamentary misconduct hearing, or the hearing’s finding was considered prejudicial to the MP’s presumption of innocence, it may not be possible for the MP to have a fair trial. The fact that an MP had to answer allegations in a parliamentary misconduct hearing could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.
I am very conscious that my noble friend has devoted a lot of time and work to putting forward his amendments, given some of the background to why we are where we are. I hope your Lordships will understand that we feel there are very serious matters, which your Lordships and I have endeavoured to outline, that are of sufficient concern that I ask my noble friend to withdraw his amendment.