---

House Committee

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.