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Intro: [00:00:00] You are listening to Parliament Matters, a Hansard Society production supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm.

Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.

Mark D'Arcy: And I'm Mark D'Arcy. And coming up this week.

Ruth Fox: The strange case of the parliamentary spying charges that were abruptly dropped last month. Why? And what happens now?

Mark D'Arcy: What are the elephant traps ahead in the new parliamentary season?

They don't seem to need much camouflage for ministers to fall into them.

Ruth Fox: And is the assisted dying bill facing a legislative logjam?

Mark D'Arcy: But first, Parliament's got China on its mind this week with three ministerial statements in four days, including one by the Prime Minister. As [00:01:00] controversy rages over the abrupt dropping of those spying charges against two alleged Chinese agents, one of whom worked within the House of Commons.

Ruth Fox: Yeah, Mark, apparently these two men met when they were teaching English in China a few years ago. So listeners, one of them is a guy called Christopher Berry, who it's alleged was recruited by a Chinese Communist Party operative code name Alex, who was working for an organization that was a front for the Chinese intelligence service.

He allegedly recruited the other man, Christopher Cash, who after leaving China, went on to work in Parliament as a researcher and then director of the China Research Group. Now that Mark is the backbench Conservative group established to bring fresh thinking to the UK's relationship with China. And of course, that's what brought him into close contact with Conservative MPs like Alicia Kearns and Tom Tugendhat.

Both of whom were involved in the group and chairs, of course, of the Foreign Affairs Select Committee, and they of course, were both sanctioned by, and other [00:02:00] members of the group were sanctioned by, the Chinese government for their China skeptic views. Now, the key question is, what are they actually alleged to have done.

So in the last 24 hours, after the Prime Minister promised to publish the witness statements from the Deputy National Security Advisor, or the DNSA at PMQs. In the last 24 hours, we've had those statements and that fleshes out a bit more of the detail to understand what it is that they're said to have done, and essentially between December, 2021 and February, 2023, when you'll recall, of course, it was the last Government that was in office, it involved passing information on about everything from run of the Mill Westminster tittle tattle to information about really sensitive private discussions with officials from Taiwan. And in Mr. Berry's case, it's alleged he had meetings with a very high ranking Communist party official, which frankly would be unlikely to have taken place according to the government unless the information Barry and Cash were [00:03:00] providing was of real value to the Chinese.

Mark D'Arcy: Of course, this is the case for the prosecution that was never made. These allegations haven't been tested in court, but the House of Commons dimension of all this has been exercising a lot of MPs, and of course, Mr. Speaker Lindsay Hoyle himself, they were infuriated when the spying charges were dropped last month, just weeks before the case was due to come to court.

And one of the big issues is the rather murky reasons for the collapse of the case, why the government didn't provide sufficient supporting evidence to allow the prosecutions to proceed, and there's now an intensive blame game between the government and the Crown Prosecution Service, the CPS. So to disentangle this rather naughty tangle of political and parliamentary issues, we turned to Professor Mark Elliott of Cambridge University.

I began by suggesting to him that the underlying suggestion here in this case is that there was a top level government decision to find a way to kill the case to avoid upsetting China.

Mark Elliott: Yes. I think that's very much the narrative which opposition parties, particularly the [00:04:00] Conservative Party, have sought to portray.

And I think that if one thinks about how could that possibly have happened, the most direct way in which it could have happened would be if ministers had somehow tried to apply pressure to the CPS simply to drop the case. And of course, ministers are insistent that didn't happen and that the CPS has made these decisions independently.

I suppose a second and slightly more insidious way in which the ministerial finger on the scales could have happened is internally within Government. On that front, again, the Prime Minister on Wednesday, and then the cabinet office minister on Thursday has been very clear that the Deputy National Security Advisor was left to write these witness statements entirely independently. So there's clearly a concerted effort on the part of ministers to suggest that all of this really happened in terms of the [00:05:00] witness statements being prepared inside a sort of official or technocratic bubble that was entirely free from any kind of political or ministerial involvement.

But whether that's convincing, I think is another matter.

Mark D'Arcy: Would it have been proper for ministers to have got involved in the writing of a civil servant's evidence to a court in a criminal case?

Mark Elliott: Yeah, I think that's a really important question, and I think there are a couple of things here which can quite easily become conflated and which it's important to try to keep separate even though they are connected.

The first thing to say is that, of course, as a witness, the Deputy National Security Advisor or any other official is responsible for their own evidence. And it would be improper for ministers, for example, to direct an official to give evidence that the official didn't consider to be true. However, when an official like the deputy NSA is [00:06:00] giving evidence in a case of this nature, and we can see this from the witness statements, now that we have them, at least in part what they're doing is they're reflecting what the government's position and policy are and the process of determining what that government position and policy is, is a separate but related matter from the production of the witness statement, the one thing that follows from the other. But it doesn't mean that because a witness statement is sort of in play, it therefore becomes improper for ministers to have any kind of role in determining what the policy is or what the government position is that the witness statement is going to describe. And so one thing that I think is going on here is that potentially there is, there's some ministerial hiding behind the fact that this was a legal process and the implication is that that would've made any kind of political involvement improper.

But I think that argument only washes if we allow those two things to be conflated.

Ruth Fox: And as I [00:07:00] understand it, Mark, one of the critical points is that the question under the Official Secrets Act of whether or not the previous government, because the spying allegations happened at the time under the previous government, considered China to be an enemy.

And there's a whole dispute about whether or not the evidence that's been provided by the Deputy National Security Advisor, you know, provides enough evidence for that purpose. And one assumes from what the Crown Prosecution Service have said is that they didn't think it did, that it now fell short. And this is linked to a recent Court of Appeal judgment, isn't it, about how that concept of enemy should be interpreted? Can you just explain that for our listeners? Because I think that's complicated the process I think in terms of understanding.

Mark Elliott: It has. So until 2024, when the Court of Appeal gave its judgment in the Roussev case, the understanding about the meaning of the term enemy in the Official Secrets Act 1911 was that it referred [00:08:00] to a country with which the UK was at war or with which there was a prospect of the UK being at war, and that's obviously quite a high threshold and I think it would be easy to see why there would be a good deal of doubt about whether China would meet that threshold. The other thing is that before the threshold was lowered by the Court of Appeal, the CPS appears to have concluded it did have sufficient evidence to charge the defendants. Then we get the Court of Appeal decision, which significantly lowers the threshold, and it says that as well as meaning countries that we're at war with or might be at war within the future, the term enemy also means a country that represents a threat to national security. That's a much lower threshold.

For reasons that aren't clear to me, and which the witness statements don't really clarify either, the CPS appears to have taken the view or one can infer that the CPS may have taken the view that the [00:09:00] Roussev judgment rather than lowering the threshold somehow increased it. And required them to obtain further evidence from the government and it was following that process of seeking additional evidence that they concluded in September this year that after all, they didn't have enough evidence at all. So we seem to be in a, Alice in Wonderland situation where under a more onerous test in 2024, they thought they did have enough evidence and now under a less onerous test, they think they don't have enough evidence.

Ruth Fox: Is it only the government that could provide the witness statements to support the case?

Because the allegation is that the Crown Prosecution Service concluded that what they'd got from the Deputy National Security Advisor was not enough and that they'd been asking for more and more evidence and it had not been forthcoming and therefore they concluded they couldn't proceed, but presumably others could have provided evidence.

Mark Elliott: Yes, I think that's right. There's nothing in the Official Secrets Act or in any of the case law [00:10:00] that suggests that the Government is somehow a gatekeeper here and that only its official view would be admissible in evidence. I can understand why from the CPS's perspective, the ideal situation would be to have absolutely clear statements from government officials that China unambiguously meets the definition of an enemy, so that it was a threat to national security in the relevant period. There's nothing in the law that limits them to that kind of evidence, and it would certainly have been open to them to admit other kinds of evidence, other expert evidence, for example, to the effect that China was an enemy at the relevant time.

It would also have been open to them, I think, if they felt that the government evidence didn't quite meet the threshold to seek to supplement that with additional evidence from other sources. So I think that would've been a path open to them. I'm not a prosecutor. I never have been, and it [00:11:00] may well be that they thought there were good reasons why that wasn't strategically sensible.

But from a legal point of view, I don't think there would've been any obstacles to it.

Mark D'Arcy: One of the strange things about this case is that you have these witness statements full of accounts of large scale Chinese intelligence operations in this country aimed at the detriment of this country. And somehow that's not enough.

And the previous government seems to have lumbered us with a situation where the government has to sort of declare someone to be an enemy and use a very hard word that can cause all sorts of international upset in order to proceed with a prosecution like this.

Mark Elliott: Yes. I think when, when the Prime Minister was first asked about this, I think on his way to India last week, he talked explicitly about the idea of countries being designated as enemies or not, and he was suggesting, I think that because the previous government had not designated China as an enemy, because he felt that his government was bound by the previous government designation, [00:12:00] that therefore nothing could be done.

Mark D'Arcy: Bound in the sense that they'd had to have been viewed by the British government as an enemy at the time the alleged offenses were being committed.

Mark Elliott: Yes, that appears to be what the Prime Minister was saying this time last week, but there's nothing in the legislation that justifies that view and as far as I'm aware there, there simply isn't a concept within government of a list of countries that are enemies and a list of countries that aren't enemies by omission from the list, there's no binary distinction like that. And even if there was, that isn't really what the Official Secrets Act is about. Even if there was an official list that said China was an enemy, a court would still need to see qualitative evidence to justify the inclusion of China in that list. So this whole notion that things were somehow set in stone by the previous government because during the time the alleged offenses happened, it hadn't classified China as an enemy or as a threat to national security, I don't think that that really holds any water in terms of the law at all.[00:13:00]

Mark D'Arcy: Yeah. So you've got this weird kind of almost international Nixon administration view of keeping an enemy's list, which you could imagine would cause all sorts of trouble if anyone actually attempted to do it.

Mark Elliott: Yes. And it's very clear from the witness statement that that there is no such list and that nobody who was involved in preparing those witness statements was under any misapprehension.

That what was needed was qualitative evidence about the threat level posed by China at a relevant time.

Ruth Fox: And adding fuel to the fire of this politically, Mark, in the last 24 hours, is the fact that these witness statements have been published. And in the third and latest one that was produced in August, so just a few weeks ago, there is a paragraph in it in which the Deputy National Security Advisor, essentially he lays out all the concerns about China and provides the kind of evidence that the CPS presumably was looking for, but there's also then a paragraph in which he explicitly talks about what the government's policy is towards China, that notwithstanding all these [00:14:00] issues, so the, the Deputy National Security Advisor wrote, we will cooperate where we can, compete where we need to, and challenge where we must.

Now this apparently is a direct extract from the Labour Party manifesto in the general election last year in relation to China. So again, this has sort of fueled the opposition's concerns that despite whatever is being said by the government, actually somebody internally within government had their finger as you alluded to earlier, Mark, on the scales trying to convey that actually it's not such a threat and trying to lower the bar. I mean, what do you make of that? Because the opposition and quite a lot of journalists are getting quite excited about this inclusion of this particular line.

Mark Elliott: Yeah, I think it does cast doubt on what's been said.

I mean, it doesn't mean it isn't true, but it takes a little bit to believe that an official operating, as we've been told, within a sort of technocratic bubble and entirely immune from any [00:15:00] kind, not just that ministerial influence, but ministerial interest it would seem, would take it on themselves to include language from the governing party's manifesto.

It also demonstrates that the government's position that it was unable to make any deviation from matters as they had been described by the previous administration clearly wasn't a view that was held within government, at least by the Deputy National Security Advisor, given that he described precisely the current government policy in relation to China, and that in turn invites the question if contrary to what ministers have consistently said for a week, if it was recognized in government that they weren't wholly bound by the previous government's position, and if it had become apparent that the language used in the original witness statement didn't quite get there from the CPS's point of view, there was nothing to stop the current [00:16:00] government to use stronger language in characterizing the threat from 2021 to 23. So I think the inclusion of that passage right at the end of the third witness statement. I think it does raise a number of really, um, interesting questions.

Mark D'Arcy: So, Keir Starmer has doubled down on his assertion that ministers were not involved in this process, and it did, as you put it, take place within a technocratic bubble. So what happens now? I mean, this is a parliamentary scandal on several levels. First of all, you've got the allegations not yet assessed by a jury incidentally, and it's well worth underlining that point, because a lot of people in Parliament were talking about as if these were proven charges, there hasn't been a trial, so they can't be. The allegations of spying within Parliament are very, very serious. And now you've got a question being raised by a lot of people about is Parliament being misled? So where does this go from here?

I mean, can Parliament in some fashion pick up the baton and start investigating this itself? Could there be a standards and privileges investigation? Could the National Security Committee [00:17:00] take a look? Could any number of other Commons select committees start taking an interest in the subject?

Mark Elliott: They could and I think they almost certainly will.

So I think that the Director of Public Prosecutions had a meeting with the chairs of almost half a dozen select committees yesterday or the day before. And I would think it's extremely likely that many of those committees, including the Intelligence and Security Committee, would be launching inquiries into this.

And I think what they'll want to do is to really put both the DPP and relevant ministers under the microscope to try to unpick what has really, I think, descended into quite an identifying blame game. I think that's, if you put together the ministerial statements that we've seen and some really quite, I think, unusual public statements from the CPS, there's clearly something going on here, a dynamic going on where the buck is being passed from government to CPS and back again. [00:18:00] I don't think that any of the debates that we've had in the House of Commons so far, either on Monday with the Security Minister statement or at PMQs, or on Thursday with the cabinet office minister statement, none of those have really allowed the kind of forensic questioning that's needed, but I think that select committees will be well placed to do that.

Mark D'Arcy: We've got to the point now where it is a bit like me confronted with some document about my pension where there just gets to be a loud buzzing in my head that the level of kind of granular detail on this is certainly something that's very, very hard for MPs to get at in the floor of the House.

Is this the kind of thing that can be very, very dangerous for a government, or is this one of these Whitehall storms in a tea cup?

Mark Elliott: Um, I think we'll have to wait and see. I mean, I think that the government has worked very hard to distance itself from what has happened and, you know, officials, the previous government, the CPS are the people who the ministerial finger is being pointed at.

I think stepping back from [00:19:00] all of the minutiae, I suppose one question politically that's going to become important is whether or not people can really buy the narrative that's being advanced, that a government that keeps insisting that it was desperately keen for this case to be prosecuted and is incredibly disappointed that the prosecution collapsed. Can people really buy that, when they also know that, for example, the Prime Minister apparently didn't step in to try to do anything when he discovered a couple of days beforehand that the prosecution was about to collapse. So I think that there is potentially a credibility gap there in terms of the narrative the government is seeking to convey about its concerns about China.

And its keenness to see this case to a conclusion versus the reality of what the government did and importantly didn't actually do.

Ruth Fox: Isn't it an alternative narrative though, Mark that, I mean, I always in [00:20:00] politics prefer cock up to conspiracy. Isn't an alternative view that the Crown Prosecution Service may have made a complete pig's ear of this.

They've laid charges back in April, 2024 that they haven't quite got the evidence for that. They've then concluded because they have a responsibility to keep that under review as time passes on the eve of going into court, they've decided actually they don't have enough evidence to sustain the case and they've effectively therefore withdrawn, canceled the charges.

Part of this is that they have possibly, like how they've managed, I don't know, but possibly misinterpreted the ruling in the case of the Bulgarians that were accused of spying for Russia and the effect that that's had on this concept of an enemy under the Official Secrets Act. They've made a complete pig's ear of it and the response in government is, well, look, we've provided these witness statements, we've provided three, it's [00:21:00] been done independently and properly by the Deputy National Security Advisor without interference from other people. Because you shouldn't be doing that when he's got to produce witness statements.

And at the heart of this, we have unusually a Prime Minister who's the former Director of Public Prosecutions, who by nature will be, yes, he's a politician, but we know he is not a very good politician, in some respects. He's not got perhaps the most attuned political antennae, but what he is at heart is a lawyer.

I mean, this has been the political criticism of him all along, that he's too lawyerly, and actually, as a former DPP, he doesn't want to touch this with a barge pole and be accused of interfering in the work of the Crown Prosecution Service.

Mark Elliott: I think that's an entirely tenable explanation, and I shouldn't say that I'm not aligning myself with the conspiracy view, and I think that it's a possibility, but I think that the cockup theory is equally, if not more likely, and, it may well have played out along the lines that you describe, either because the CPS [00:22:00] started out by thinking that it had the right evidence and then decided it didn't, or because, as you say, it took a perhaps too stricter view of what the Court of Appeal judgment required, or simply because it took too conservative a view of whether or not the evidence provided by the deputy NSA was sufficient.

I think a lot of people who have looked at the witness statement so far are quite surprised that the CPS took such a cautious approach in relation to them and didn't think that they were at least enough to put in front of a jury. So I do think that that kind of process failure, that sort of cockup theory is entirely plausible.

I think the problem that we face right now is that although we now know more than we did at the beginning of the week, we still don't really know enough to come to a clear view on that kind of question.

Ruth Fox: Yeah. And can I ask you about the position now of these two men at the heart of this case, [00:23:00] because they've been accused of spying, they've been charged, the charges have now been dropped. In our system, you are innocent unless proven guilty. They have not been proven guilty. It's not been put to the court because the trial didn't start. Can they be charged again or is that it, does double jeopardy apply now or is there any prospects of them facing further charges or private prosecutions or so on? The Speaker back in September was talking about bringing a private prosecution.

I noticed that that's not something he's referred to in recent days. So I'm assuming that he's concluded that or his lawyers have concluded that's not an option. But it just seems to me that these two guys they're sort of under parliamentary privilege. Quite a number of politicians, including the Speaker, are speaking about them in terms as if they are guilty, and yet they find themselves with no recourse to proving they're innocent in a court of law now.

Mark Elliott: And I think that really is concerning. So on the question about the possibility of re prosecution, my understanding is [00:24:00] that that would be essentially impossible because of the double jeopardy rule. I think that one concern that's very interesting for people like us to pour over the witness statements.

The witness statements contain a large amount of evidence, which is untested by any court of law. The government has taken the extraordinary decision to put that into the public domain. It's published on the government website that gives it a kind of status, or at least it appears to give it a kind of status, and yet ultimately all of those points remain untested allegations. And so we have, you know, the rather strange position where a Prime Minister, as you mentioned before, who is perhaps lawyer before politician, who is very process oriented, has chosen to put this sort of information into the public domain in a context where there's no prospect of those individuals having the opportunity to contest their innocence in [00:25:00] front of a court through a full criminal trial process.

They were declared not guilty in court after the CPS told a senior judge there was no longer a case before a jury at trial. This means that formally they were acquitted and to prosecute for a second time under the double jeapordy rule, there'd have to be a compelling evidence and approval from the Court of Appeal or permission from the Court of Appeal to bring a second prosecution.

So I think the technical outcome of the case is that they were formally acquitted, but the concern is that in terms of public perception, that doesn't really counter anything because they haven't had their day in court and they were acquitted because the prosecution was withdrawn.

Mark D'Arcy: Well, that's a very interesting health check on what's still an unfolding situation.

Mark Elliott, thanks very much indeed for joining us on the pod today.

Mark Elliott: Thank you.

Ruth Fox: Thanks, Mark.

Well Mark, what did you take from that? What do you think we learned from that discussion?

Mark D'Arcy: Well, [00:26:00] I don't honestly think in some ways we're a great deal further forward. No, I mean, Mark Elliott was very good at teasing out the issues and pointing to some of the really obvious peculiarities about the story.

This idea that the government and ministers just sort of sat on their hands and let the case unfold, I mean, you know, to some extent has a bit of plausibility because of Keir Starmer's background as a prosecutor. But you know, you do wonder if politics at that higher level is really left to sort of run unsupervised on its own.

And there are all sorts of other questions as well. I mean, would the Chinese really have been that upset if their spies were prosecuted? Wouldn't they see that as the price of conducting espionage, for example? I suppose my main thought about it is this is just the latest in a long run of these controversies about various different aspects of Chinese influence. You remember George Osborne proclaiming a golden era of UK China relations back in the coalition years. And since then we've had the Huawei issue, whether technology from China's telecommunications [00:27:00] giant should be included in the British telecommunication system, or whether that would amount to a sort of gateway for mass espionage.

In the UK there's been this whole issue about a giant Chinese embassy in London quite close, both to the city of London and to the heart of government. There's also the allegations that have surfaced just in the last couple of days from Boris Johnson's former Chief of Staff Dominic Cummings, that actually China had penetrated top level British communications already, and it was harvesting huge numbers of government secrets and data.

Ruth Fox: And interestingly, not denied by the government.

Mark D'Arcy: Yeah, not a peep on that one. I don't know if people are just rolling their eyes somewhere in the background. But that's a very, very serious allegation. Heaven only knows what the Chinese managed to find out from being able to access those communications if indeed they could.

Ruth Fox: Yeah. And apparently, while we are recording, Mark, the head of MI5 has himself been making a speech in which he said that he regrets the collapse of the case. And he's referred explicitly to the threat that the Chinese authorities pose to the British state [00:28:00] and has indicated that even in the last week they have taken actions to head off some of the attempted, I don't know whether it's espionage or, you know, crypto intelligence operations or whatever it is, but they've taken action against Chinese operations.

So, you know, it's very clear that there's plenty of evidence out there and how you describe it and what labeling you put on it is perhaps up for discussion and, and debate and different politicians will put different weight on it. But at the end of the day, I do wonder whether, particularly in public, it's ever gonna be possible to get to the bottom of what happened here.

Mark D'Arcy: Well, some people will be trying on the Committee on the National Security strategy. Which is a Commons and Lords committee full of very, very senior figures, chaired by the Labour MP Matt Western, which has just announced that it's holding an a select committee inquiry. And will be calling people in.

Now, we already know they're going to be speaking to Jonathan Powell, the National Security Advisor, in private. Whether some of the other evidence sessions can be open. Well, we just don't [00:29:00] know yet, but it'll be very interesting to see what verdict they come to, if indeed they find it possible to come to a verdict.

But, several other parliamentary committees, as we were saying earlier, could well find themselves on the case as well. No one's gonna stop digging on this for quite a while, including the China research group and all those Conservative MPs who had this guy working for him.

Ruth Fox: Yeah. Because it is very personal for them. You can understand why, you know this is somebody working at the heart of their office, the heart of their operation that they have been betrayed by as they see it allegedly. And you can understand how personally they feel about it. The speaker very, very clearly, you know, security of the parliamentary estate, security of MPs, security of our democracy is obviously paramount for him and he's clearly irate.

But in terms of the government, I mean, who knows what ramifications will be, but you, as we say, we've had a number of statements this week. If it is found that any minister has not been fulsome in their explanations with the House of Commons, and perhaps has in any way [00:30:00] misled the House and can be shown to have done so well, there'll be hell to pay.

Mark D'Arcy: Absolutely. And of course, coming up next week in the legislative agenda is, is the bill to enable the Chagos Islands deal, which has huge ramifications for Britain in the Indian Ocean and indeed for China, potentially getting a foothold there as well. We'll take a quick break and we'll come back and talk about some of those forthcoming legislative elephant traps.

Ruth Fox: See you in a minute.

Well, Mark, we're back as is Parliament for a busy few months ahead through to the end of the session. We don't quite know when that will be. We're told it'll be the spring, but there's a lot of things on the agenda, legislative, which we'll perhaps come on to in a minute. But the thing we left off from our previous discussion, relations with the Chinese is going to be a theme of these next few weeks. On Monday, I think this week we've got consideration of the Chagos bill, essentially the treaty agreement between us and [00:31:00] Mauritius for the future of the Diego Garcia Base and the Chagos Islands. And of course that brings right to a head this question of the relationship with China.

And how much money it's gonna cost us to do this deal.

Mark D'Arcy: This is the massively strategically placed island in the Indian Ocean, which is a mega American air base, which allows them a lot of strategic cover across the Arabian Peninsula and the sea lanes around it. So it's an incredibly important strategic asset for the United States.

When the Government is contemplating this deal with the government of Mauritius to, as they say it, regularize the position. And an awful lot of critics call it a strategic surrender. Now that's all being dealt with in a single day. You know, this is the Parliament going to pass the enabling legislation required by the treaty in more or less a single gulp and I'm sure that there will be plenty of complaints about the process as well as the substance of the bill as a result of that.

Ruth Fox: Yeah, I mean, it's not a particularly complicated bill, and I guess because it's got constitutional implications, [00:32:00] it would be normal for it to be heard, for committee stage to take place in the chamber, not in a public bill committee.

And as far as I'm aware, the government has got no amendments down on the order paper for it, so it's highly unlikely that it will be amended. So in effect, it'll have committee of the whole house, no report stage and a quick third reading, so they'll get through it pretty quickly. The Conservatives wanted a debate on the principle of whether or not this agreement should be ratified under the Constitutional Reform and Governance Act, which we've talked about a number of times on the pod and couldn't get a debate, and were told it's all gonna be dealt with in legislation. Well, it's all gonna be dealt with pretty quickly next week.

Mark D'Arcy: Yeah. But look out for some of those figures from the China research group who I think will be taking a chance to weigh in with their concerns.

Ruth Fox: The other issue, of course, that's gonna come up, that's gonna engage China, and, it depends upon what the Americans do, but there's this. It's a question about steel tariffs and whether or not we are gonna be affected by what the EU does to prevent dumping of [00:33:00] steel in Europe. And the suggestions that we are gonna face problems as a result of whatever actions they take.

Mark D'Arcy: They think we are rooting Chinese steel through the EU.

Ruth Fox: And then of course, then the implications of that are what is the future of the remaining steel industry locations here in the uk. And of course, a few months ago when we had the emergency legislation to save the steelworks in Scunthorpe, the then business secretary Johnny Reynolds, committed to make monthly statements to the House.

So it'd be interesting to see how that pans out because that's also got a Chinese dimension.

Mark D'Arcy: And it's expensive business. The government running a steel work and keeping it afloat. Greg Hands, former, a treasury minister under the Conservatives tweeting a while ago, he fought tooth and nail to stop such a thing happening.

He didn't want government owned steelworks, but now we've got one and I suspect it won't be cheap.

Ruth Fox: And talking finances. The big issue looming on the horizon towards the end of November, the budget and the finance bill that will follow.

Mark D'Arcy: Yes, indeed. And you've gotta say that there is something very odd [00:34:00] about the politics of the budget.

I mean, I can understand that Rachel Reeves has to do some pitch rolling about what are going to be some quite uncomfortable measures. Doubtless, they'll be spending cuts, doubtless there'll be tax rises. Further down the pipeline, we've got the Stephen Timms review of the social security system, which may pave the way for the government being able to find some savings from the burgeoning social security budget.

But what really gets me about the process at the moment is that the government seems to be kinda live brainstorming, tax raising ideas, every one of which chills the blood of the middle classes. Will they cut the amount that you can put tax free into savings in an ISA, will they do something to inheritance tax?

Will they reform the council tax or abolish it? Will they do this? Will they do that? How are they going to take money from you? And the end result of this is what some papers are calling budget funk. No one's going to take an economic decision till they're quite sure what the government's gonna do to them, and that has a chilling effect of its [00:35:00] own on the economy.

So it's a remarkable position they've got into where the speculation is running a mark. We've got weeks and weeks to run until the budget. So there's plenty more time for the economy to stay semi frozen and it's not helping.

Ruth Fox: No, and I think we've talked about this on the pod before, but if it does not land well, then the government's back in real difficulties.

And in particular, Rachel Reeves' position, I think then comes under real pressure. And whether she can stay in office. And recent history on budgets has not been good. You know, they've not landed well, there's been problems.

Mark D'Arcy: But I think the point here also though, is that Rachel Reeves is umbilically connected to Sir Keir Starmer.

And, you know, she's his choice to be chancellor of the exchequer. He's absolutely nailed himself to her economic strategy. If the economic strategy goes pear shaped, if it's delivering nothing but disaster, then it's not just a matter of change the chancellor change the strategy. It's possibly a matter [00:36:00] also of change the Prime Minister and Liz Truss did not long survive the demise of Kwasi Kwarteng who was implementing her economic strategy. I think the same might one day be said of Sir Keir Starmer if this all goes horribly wrong, they both surely go.

Ruth Fox: Yeah and just going back to that question of the state of the public finances, I'm gonna speculate that one decision that will not be made probably by Parliament, before Christmas, but really ought to be is the future of the restoration and renewal of the Palace of Westminster. Again, another theme that we keep revisiting. We have been told in statement after statement that a vote will be held on the future of the restoration and renewal program, and whether or not MPs and peers are going to leave the Palace of Westminster to enable the refurbishment work to take place over a number of years or not, or whether there'll be a partial decant, the Lords will move out and the Commons will move into the Lords. So a number of different scenarios are in play. We are promised that there will be a report and a vote by the end of this year. But given that the leader of the House of [00:37:00] Commons and a key figure on the restoration and renewal governance side has recently changed, of course, once Lucy Powell was removed from cabinet and replaced by the then Chief Whip Officer Alan Campbell. I do rather think that, that again could be kicked into the long grass a bit further.

Mark D'Arcy: It's one of these things where they keep promising there'll be a debate in due course and a report in due course, and then it doesn't appear and it's just kicked, as you say, further and further into the long grass.

And in the meantime, the Palace of Westminster is essentially being held together with spit and sawdust and running repairs. And there's a risk of fire or some structural collapse and bits of gargoyle falling on people, sewers, whatever it might be, breaking, the sewers bubbling up. I would say that that turns the place into a living metaphor and all sorts of disasters could befall it.

And of course, when you have the state opening of Parliament, just imagine what would happen if the lights went out in the middle of that, leaving His Majesty stranded in darkness as he processes towards the House of Lords. That would be a tad awks.

Ruth Fox: Just a [00:38:00] touch. I think two other issues that might come up, certainly before the end of the year, and which could be difficult particularly for the government, are codes of practice, which is not something we talk about a lot in the podcast, but we are expecting the EHRC, Equality and Human Rights Commission code of practice on trans policy, which is gonna be politically sensitive.

And we're also expecting some changes in respect to special educational needs. And going back to my favorite subject, Mark, delegated legislation, they will if MPs get any kind of decision on these or any debate, they'll follow very much the approach that's taken to delegated legislation. And I think then again, we'll find that MPs are not very happy with the options available to them to discuss these issues. And so the pressure will be on the government to make time available. But again, you know, these are fraught questions, you know, special educational needs. How do you deal with the burgeoning scale of the budget and the size of the problem in schools across the country?

You know, what would cutting back [00:39:00] on special educational needs provision mean and who will it affect? And obviously we know about the issues and the legal issues, particularly around trans policy.

Mark D'Arcy: I think calling them legally sensitive is like saying atom bombs are a bit dangerous, you know, it really is an incredibly difficult issue for a lot of parties, particularly on the left.

Then the sound and fury around it isn't gonna go away. So as you say, MPs will be looking for channels to try and get some of this stuff debated and will discover to their horror that it's really not all that easy to force a statutory instrument to be debated on the floor of the House of Commons if a government doesn't want to play ball.

Ruth Fox: Or in this case a code of practice.

And on the select committee corridor, I mean, we talked about, you know, what's likely to happen in relation to this collapse of the China spy case, but of course the other legal case we shouldn't lose sight of is the Ministry of Defense, Afghan super injunction that we talked about before the summer recess.

And we're expecting hearings from a number of committees, public accounts committee, possibly the Intelligence and Security committee, the defense committee [00:40:00] to name just three, looking into that. So again, that could be super awkward for both current ministers and former ministers who are involved in that case.

Mark D'Arcy: Because that really was an all singing, all dancing copper bottomed ocean going fiasco. And it does raise the question, raise all sorts of questions about whether Parliament should have been able to sink its remaining teeth into the issue earlier and why that didn't happen.

And you know, what amounted to the effect of gagging of the Speaker. I mean, apparently in the recesses of the sort of national audit system, people were told about the expenses going on there. But what's absolutely clear is that Parliament didn't really get anywhere near it.

Ruth Fox: Yeah. Well Mark, before we take another quick break, we've survived party conference season. We're awaiting a deputy leadership election announcement in a week or so. But, you are veteran follower of by-election results, local council by-election results. So are you keeping an eye on [00:41:00] anything sort of at the moment in terms of the state of the parties?

Mark D'Arcy: The big one to watch out for at the moment is the Senedd by-election in Caerphilly, which is due I think next week, which has basically been a Labour seat since dinosaurs walked the Earth, you know, and a recent opinion poll there showed an absolute collapse of the Labour vote and the seat was now being contested between Reform UK in the lead and Plaid Cymru. Now, that is an absolutely incredible sea change in Welsh politics if that's what turns out to happen. I mean, two very, very big caveats here. This is a byelection and anything can happen in by elections. Second caveat is this is one opinion poll and opinion polls can occasionally be wrong. Yeah, so take a certain amount of salt with this.

But what we've got coming up next year in next May is a full set of elections to the Senedd, as well as a very major set of local elections in English cities, the Scottish Parliament, up for grabs, of course, who governs Scotland. So the huge series of elections there, if Labour does very, very badly in those, if that kind of result that's being [00:42:00] foreshadowed by this poll in Caerphilly happens in Wales and Labour really loses very, very badly, it's incredibly destabilizing. It could spell the end of Starmer's leadership. Equally survival and a better than expected performance by Labour could secure Sir Keir's leadership. But, you know, nobody knows what's gonna happen in a few months time there. But these are things that can tip the balance. Parties don't like intimations of doom. Politicians seeing other parties winning big in their constituencies get very, very jittery indeed. And I think an awful lot of Labour MPs will be looking very closely at what happens in their seats and making their dispositions accordingly, or maybe just spending some time polishing up their CVs.

Ruth Fox: Well let's take a break there then.

Mark D'Arcy: With that happy thought?

Ruth Fox: With that happy thought. And, should we come back and talk about an update for listeners on the assisted dying bill and the state of the legislative programme?

Mark D'Arcy: Yeah. Join us in a few moments for some interesting developments there.

Ruth Fox: See in a minute.[00:43:00]

Mark D'Arcy: We are back. And Ruth, while I was sunning myself in Provence a few weeks back, the assisted dying bill finally cleared its second reading debate in the House of Lords, but not without having to go through a few extra procedural hurdles. In particular, the price of getting the bill through second reading appears to have been for the Bills promoter, Lord Falconer, the former Labour Lord Chancellor to agree a special select committee should be set up to look at the issues in the bill and report back fairly rapidly. Now, this has a number of important effects, not least that it slightly delays when peers can start getting into their detailed committee stage debates on the bill, but there's also the question of what this committee will do, what it might comment on and recommend.

So talk us through what's happened there.

Ruth Fox: Yeah, so this week with the House of Lords back from recess, they approved a motion to establish the committee. So it will take evidence between now and the [00:44:00] reporting deadline of seventh and November. So it's only got a few weeks and this committee will take evidence.

It's quite specific. It will take evidence from professional bodies that are affected by or relate to the assisted dying bill, from coronial services, so the coroner's service essentially, and from ministers. And unusually, the committee does not need to report with recommendations. It will simply report the evidence to the House, and it has to do that, as I say, by the 7th of November. Now it will be chaired by a very eminent peer, Lord Hope of Craighead, who is former convener of the crossbench peers, former deputy president of the Supreme Court, one of the most respected peers in the House, and there are a number of other prominent names, so the peer who was behind this idea and tabled the motion on the day of the second reading debate for it, Baroness Berger, Luciana Berger, the former Labour MP.

She left and went to the independent group and then went [00:45:00] to the Lib Dems, and now is back on the Labour benches, of course, uh, fell out with the Labour Party over its position particularly in relation to antisemitism. She had a very difficult experience. She tabled the motion. She's now been appointed to the committee.

Baroness Ilora Finley, professor of palliative care. So you know, some expertise in there.

Mark D'Arcy: Big critic of the bill as well.

Ruth Fox: Big critic. We have a bishop, the Bishop of Newcastle, of course, the Bishop of London, who was leading on this in the second reading debate, Sarah Mulally, of course, has been elevated to the, she's now the

Mark D'Arcy: Archbishop of Canterbury.

Ruth Fox: So whether she's gonna be able to be as prominent on it or not, I don't know, because she's got so many other responsibilities to deal with on her plate now, but the Bishop of Newcastle will serve on the committee. Lord Winston, Robert Winston, the fertility expert, professor of Science and Society at Imperial College. So, again, some, you know, real expertise in there. Baroness Hayter of Kentish Town is a prominent former Labour front bencher. She was, you know, big player for the Labour [00:46:00] benches during the Brexit debates and I think she ran for speaker last time.

So she's on the committee as well. Baroness Scotland of Asthal. Former Attorney General, I think, and former Secretary General of the Commonwealth.

Mark D'Arcy: Patricia Scotland.

Ruth Fox: Yeah, Patricia Scotland. So, she's serving on it. And then there's a couple of probably less prominent names for our listeners drawn from Labour benches, Conservative benches, Lib Dem benches and the bishop's bench.

Mark D'Arcy: But I think here the attempt is to get a balance between those who've opposed the bill and those who supported the bill at second reading with quite a large chunk of don't knows and undecided to, yeah.

Ruth Fox: Well, and that's the challenge of course, because unlike in the House of Commons, they didn't do a formal division.

They don't normally at second reading in the Lords, and as expected they didn't do this time. So there's no formal list of pros and antis to the bill like there was in the Commons. So you've gotta do a sort of an analysis of who spoke in the debate and what did they say. Have they spoken in previous assisted dying bill [00:47:00] debates and what did they say?

And that's no guarantee of course, that several years on their views remain the same. Because it's quite clear that some members' views have evolved. Have they signed anything? Are they representatives of all party parliamentary groups and so on? The best we can tell at the moment with any certainties that we think six of those who've been appointed to the committee are broadly against the bill. Four we think are definitely in favour of it. Lord Hope as chair is unclear, and I think, well, he will maintain a,

Mark D'Arcy: He would want it to be unclear, I think.

Ruth Fox: And then another couple who we're not entirely certain, I mean, one signed the letter that Baroness Berger put out around at the time of the second reading, proposing this select committee, but I don't think that's a guarantee that they necessarily are against the bill. They might have wanted evidence taking and they might have thought a select committee idea was a good one, but it doesn't mean that they're automatically against the bill. So I think it's definitely six against, four for, two unknown, and the chair.

So it could be entirely [00:48:00] balanced or it might not. We'll have to see how it plays out. But, peers have approved this now, this week, so they're clearly happy with the balance. And I assume that next week, evidence sessions will start to kick off.

Mark D'Arcy: We have to watch how the questioning goes as well.

Yeah, I suspect. I suppose the other point about the establishment of this committee is, as you mentioned, it does push back the moment to which committee stage proceedings can start on the bill. And so that Lords will, it's hoped to kick off with that in November after the committee has reported and peers have had a chance to digest the report.

So does the timing for the bill now start to get a bit problematic? Is there gonna be enough time to get through all the detail and debate all the amendments that peers might want to put down in time to have the bill get to its report and third reading stages, and then if necessary, go back to the Commons for any amendments to be considered?

Ruth Fox: Well, I think the answer to that is we don't know. But I think there's a few factors to consider. So [00:49:00] this select committee will report on the 7th of November. The whips have then announced four dates between then and Christmas. So the first date being the 14th of November, when there will be sitting Fridays when the House will consider the bill and it'll be in what's called committee of the whole house, which means it'll be in the chamber, not a committee room, and all peers can participate and they can have formal divisions if they need to on amendments now. Four full sitting days on Fridays is a lot of time, but whether it will be enough time for committee stage, for the number of amendments that may be tabled, we just don't know.

Mark D'Arcy: And the amendments are piling up already.

Ruth Fox: I mean, it's not gonna start till mid-November, but last time I looked a few days ago, there were already 50 odd amendments on the amendment paper. So quite a number of them from Lord Falconer himself. I haven't looked in detail at them yet, but it may well be that some of these are from the government as tidying up measures. And we've indicated in our previous podcast on our last special on the assisted dying bill, that there were a number of sort of issues that [00:50:00] need to be addressed, not least in relation to my favorite subject, delegated powers.

So some of that may be a tidying up exercise and they already know that they need to do them, so they've got them tabled early, but there's many weeks to go before that first sitting. So I would expect probably hundreds more to be tabled. And obviously between the 7th of November when the select committee reports and the 14th, you'd expect to see a whole load more.

Mark D'Arcy: Reacting to what comes out in the report.

Ruth Fox: Yeah, and from the evidence as it is unveiled week to week. So the question then is, is four days gonna be enough? If it's not, they will have to schedule time in the new year when Parliament returns, whether that will be on a Friday. Further Friday sittings or whether that will be in what would normally be government time in the house.

We will have to see. But of course the other unknown factor is how much time they've got to play with because we don't know yet when the end of the session will be. The government has said it will run through to the spring, but

Mark D'Arcy: That's a lovely sort of undefined term [00:51:00] there. As ever on these things.

And of course there'll be plenty of other legislation, quite big ticket legislation. Yeah. All sorts of things like, you know, the Great British Railways bill, various bills on

Ruth Fox: Will that ever see the light of day?

Mark D'Arcy: Yeah. There'are all sorts of stuff promised and they've gotta get it through before the music stops at the end of the session.

Which we are guessing is probably going to be after the local elections in May sometime.

Ruth Fox: That's my best guess. I mean, I think if I were looking at it being entirely cynical about these things, if I were planning it, I'd sort of think, well, if we're gonna take a bit of a tonking in the local elections, there's no avoiding the fact that on the Friday after the local election results are out, you're gonna face a difficult press. But if you can have the state opening the following week or soon after

Mark D'Arcy: You change the subject.

Ruth Fox: You change the subject. And you move on to this sort of idea that actually the government's got a new dynamic legislative program in front of it, and you get to talk about those issues instead.

I may be too cynical for, maybe you've been around this for too many years, but it may be that they go [00:52:00] earlier and they go, something in March, April time. My best guess is they'll go in May,

Mark D'Arcy: But in the meantime, there's our point is that there's a lot of legislation that has to be pushed through the Lords.

And if you are also having to find several extra days for the assisted dying bill, that's a bit of a nightmare for the government business managers. And it may well be that you start seeing bits of assisted dying bill consideration cropping up on, say, a Tuesday night after they finish with another bill.

They may be resorting to slightly unusual time periods to get this bill through.

Ruth Fox: Yeah. Because the other thing to bear in mind is the rule of thumb. It's not exact, but you know, a rough estimation is that for all the time that the House spends at committee, it'll spend 50% on the next stage at Report.

So every day you add in committee stage, you're adding extra time at report stage as well.

Mark D'Arcy: They've already got two days, presumably penciled in for report stage at some time in January, February. If it starts having to be three days, four days, then as I say, things get a bit [00:53:00] problematic for the government business managers. And that's not impossible.

Ruth Fox: No. Absolutely not. I think it's eminently possible, but it just becomes more challenging. And of course the other side of this is that it means peers have gotta turn up Friday, after Friday, after Friday.

Mark D'Arcy: A bit of a yomp for Noble Lords who might be wanting to do other things on their Fridays.

Ruth Fox: Yeah. Because of course, remember that they're not like MPs, they're not paid a salary. They have other jobs, other professional responsibilities, and of course the Lords are sitting quite often, certainly before the summer recess, sitting quite late into the night. So adding four Fridays potentially sitting quite late into the evening will be challenging. In terms of the other bills we've seen this week, a bit of a mini row between the government whips and the opposition whips in the House of Lords about whether the House should sit early in order to consider legislation. The government wanting to do so to sit before oral questions and sit earlier in the morning and the Conservative Party saying, no, we don't want to do that, because the government's able with Liberal Democrat support in particular and some of the cross benches able to get that through. So they did sit early, but it's an indication of the time pressures that they're under, [00:54:00] you know, twice this week they have suspended normal standing orders in order to facilitate changes to the normal way in which they handle legislation and normal scheduling arrangements.

Mark D'Arcy: And that's just going to continue. And we also got one other little piece of House of Lords news, which we should really take a look at, which is that the Lord Speaker, Lord McFall, former Labour MP, former chair of the Treasury Select Committee in his Commons days, member of the banking commission that looked at banking issues when there was a banking scandal a while ago.

He's decided to stand down as Lord Speaker a little bit early because apparently there's now an issue with his wife's health. So Lord McFall is gonna stand down and a new Lord speaker will have to be chosen. And that of course means Hansard Society, Lord Speaker hustings.

Ruth Fox: Of course, yes, we are on standby.

So if any parliamentary officials are listening, we are, we're ready. So basically, ever since the election of John Bercow as speaker, which would've been what, 2009, something like that, 2008 we [00:55:00] hosted the first ever hustings for the election of the Commons speaker. And then subsequently, when the position of the Lords Speaker was created, we then hosted those hustings. And of course, last time for Lord McFall, it was in the middle of COVID. So his term was due to end next summer. I think it's about a four year term. Last time it was in the middle of COVID. And of course we held those hustings online. And I remember famously one of them got canceled at very short notice because of the death of Prince Philip.

And we had to reorganize it all within a very, very tight timeframe. So it was quite tricky. But yes, Lord McFall, I think has been a pretty good Lord Speaker.

Mark D'Arcy: It is of course a very different job from that than the Commons speaker. Yeah. You know, you don't get the Lord Speaker shouting order, order and sending people out of the chamber in the same way.

It's a much lower key role than the Commons speaker. But not an un influential one. Norman Fowler, for example, when he was in the chair in the House of Lords, I think had quite a lot of traction over the way business was conducted, even if it was all a bit behind the scenes.

Ruth Fox: Yeah. And a lot of influence behind the scenes on things like the debate about how big the [00:56:00] size of the House should be, for example, I mean, Lord McFall gave his first speech on that theme to the Hansard Society a couple of years ago, and obviously it's got quite an important diplomatic role as well on behalf of the House. So it'll be interesting to see who the candidates might be. Of course, one of the things that, we're expecting is that it's Hereditary Peers Bill completes its passage before the end of the session. Then actually there'll be a whole host of peers, hereditary leaving the House, on current legislative plans. And actually some of them might have in other times, been candidates to be speaker, but obviously won't be able to put themselves forward this time.

So it'll be interesting to see who the candidates might be. But yes, we are ready on hand to do the hustings.

Mark D'Arcy: Do they operate still as sort party Buggins' turn thing where you know, the Lord speakership essentially revolves between Labour, the Conservatives and the crossbenchers. The Liberal Democrats don't seem to get a look in despite being a quite a big group in the House of Lords but is that still operational? Could a Labour Lord [00:57:00] Speaker be followed by another Labour Lord speaker?

Ruth Fox: I don't think there's anything that would prevent it. I think in part, it would depend upon who the people were that put themselves forward. But if you look at the history of it, you had Baroness Hayman, who's a Labour peer, then she was followed by Baroness D'Souza, who's a crossbencher.

Then you had Lord Fowler, who's a Conservative peer. This feels like Question

Mark D'Arcy: 20 questions please. And then you get Lord McFall.

Ruth Fox: And then you get Lord McFall. So yeah, the Liberal Democrats haven't had a look in the candidates last time. In addition to John McFall were Baroness Hayter of Kentish town, who's a Labour Peer, and John Alderdice, who is a Northern Ireland Alliance Pier.

So other candidates from other parties can clearly put themselves forward and if they get enough support, they can move to the next stage. But, it may well be of a view that actually it's not Labour's turn this time.

Mark D'Arcy: Yeah. And I suppose the other issue is always how much change do their Lordships [00:58:00] want?

Sometimes people who run on a radical reforming program find that there's a sort of murmur of steady on old chap and they find themselves not getting many votes and there's a limit to how much change I think the House of Lords is prepared to swallow in a single gulp.

Ruth Fox: But anyway, we don't know when the date of this change will take place. But, we're told it'll be early next year.

Mark D'Arcy: Watch this space. And so with that, let's wind up this week's episode. Join us next week for another installment of Westminster action. Who knows what wild excitements would've shaken the palace by then.

But see you then. Goodbye.

Outro: Parliament Matters is produced by the Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information, visit hansardsociety.org.uk/pm or find us on social media at HansardSociety.

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