Memorandum submitted by the Rt Hon Sir
Nicholas Lyell QC MP
This letter sets out some comments in response
to the recent consultation paper on proposed amendments to the
rules relating to the conduct of Members, which I hope will prove
helpful to the Committee and to the House.
1. Paragraph 2 of the fifteenth report (the
Consultation documents) rightly points out in paragraph 2
(a) that the rules relating to the conduct
of Members are detailed and stringent
(b) that the main purpose of the Register
as laid down in the Select Committee's first report in 1991/2
is "to provide information of any pecuniary interest or other
material benefit which a Member receives which might reasonably
be thought by others to influence his or her actions, speeches
or votes in Parliament, or actions taken in his or her capacity
as a Member of Parliament".
In the above context I have two principle comments.
The first is that the detailed and stringent requirements of the
rules require an equally clear and well-structured investigations
procedure for which straightforward but reasonably comprehensive
rules of procedure should be drawn up. Such rules of procedure
are commonplace amongst self regulating bodies eg, the RIBA, GMC,
GDC, Bar Council, Law Society etc. and a similar standard ought
also to be maintained and applied by Parliament itself through
the Commissioner and the Committee. It is noticeable that the
lack of such procedure has to some extent exacerbated the apparent
misconduct of Members who have fallen into error by making inappropriate
submissions, and led to injustices to others in that certain Reports
have failed to bring out the full picture in a fair and balanced
way. The drafting of the rules is a matter on which the Committee
might wish to seek some professional help. The question of procedure
was to some extent the subject of the ninth Report by the Commissioner
dated 4 April 2000 and I attach some comments on this topic which
I drafted in the context of that Report and which maybe helpful
to the Committee.
2. My second main comment concerns employment
agreements dealt with at paragraphs 32 to 37. The proposed changes
are not in my view consistent with the meaning of the present
rules and the House should consider carefully whether the proposed
extensions fall within either the letter or the spirit of the
main objectives of the rules which refer to interests or benefits
"which might reasonably be thought by others to influence"
ie, members "actions, speeches or votes in Parliament. .
. " What is proposed is the creation and registration under
this heading of agreements for example with an agency which are
not in truth employment agreements at all.
Those who speak or write to diverse audiences
on a one-off basis, such as former Prime Ministers or other senior
Ministers, or high profile public figures such as the present
Mayor of London are not employed by their audiences nor usually
employed by any agency which may organise or promote such engagements.
It is hard to see how someone speaking to such
an audience eg a gathering of Bankers or a large meeting in the
USA or Europe for which he or she receives a fee can be thought
to be influenced themselves in their views. The problem which
must be guarded against is that of genuine employment. If a Member
is employed on a regular basis by a newspaper to write a regular
column, then indeed the substantial fees they receive may well
be thought to have and may indeed have some influence on what
they say and do in Parliament. Furthermore, what is at issue is
not the declaration of the interest which the current rules rightly
require, but the detailing of information as to levels of remuneration.
The fact that something is interesting to the
public is not the same as its necessarily being in the public
interest. At present the principle which underlies disclosure
of financial reward is the principle of employment. This is a
sensible principle but to extend it generally is a major step
that the House should not take without careful consideration and
I have one or two comments of a more detailed
With regard to approaches to Ministers where
a Member has a relevant financial interest, the proposal in paragraphs
25 and 25 seem to be that anyone with a relevant financial interest
is to be prohibited from making "any approach whether oral
or in writing to Ministers or Servants of the Crown". It
is unclear what "relevant financial interest" covers.
For example, does a Member of Parliament who is a farmer have
a relevant financial interest in relation to the Weeds Act 1959?
Could he for example initiate a debate or approach a Minister
in relation to the control of Ragwort as was recently debated
in the House? The resolution of the House at 15 July 1947 which
is quoted at page 21 of the Code of Conduct and Guide to the Rules
approved on 24 July 1996 relates expressly to paid advocacy. It
would already seem clear enough that it covers approaches to Ministers
since it refers expressly to them.
The reference to "Servants of the Crown"
presumably relates to Civil Servants. I would have thought that
this was already covered. My point is that we must be careful
not to catch conduct which is normal and reasonable by Members
of Parliament, most of whom are not paid advocates in any event.
To do so would weaken the ability of knowledgeable Members, who
have a properly declared interest, to hold the Government to account.
Category 5Gifts & Benefits (Hospitality
UK), Paragraph 13
Paragraph 13 recommends that hospitality provided
by the Government or devolved institutions in Scotland, Wales
or Northern Ireland should be exempt from registration. We should
be cautious before we pass this recommendation. It is already
clear that the new constitutional arrangements following devolution
are introducing significant tensions within the United Kingdom
and within Parliament itself. The idea that the Government of
the day or the devolved Governments should be able to wine and
dine or provide other hospitality to Members of Parliament, whether
from their own region or other regions, without the hospitality
even being registerable should be approached with great caution.
The object of our rules is transparency and the provision of information
on anything which might reasonably be thought to influence a Member.
This would seem to be well capable of being
the purpose of governmental institutions which provided hospitality
to Members whether from their own or other portions of the United
Kingdom. To pass this amendment would be to open the door to "pork
barrel" politics at the behest of national and regional governments.
Notes on Procedure
This paper received by the Committee from the
Commissioner is intended to set out the procedures she follows
when investigating complaints against Members of Parliament. The
Committee invites any member who wishes to makes comments or suggestions
on it to put them to the Commissioner.
It may be helpful to analyse the various stages
in the procedure which Members should be entitled to expect to
Members are entitled to expect a logical progression
which would go broadly as follows:
(a) A complaint is received. If it discloses
no infringement the complainant should be so informed and no further
action should be taken.
(b) If it alleges an infringement but provides
insufficient background material, the complainant may be asked
to provide further information; alternatively the subject of the
complaint may be asked for a preliminary response, but merely
to enable the Commissioner to decide whether there is even a prima
facie case to investigate.
(c) Once the Commissioner is satisfied that
a complaint provides prima facie evidence of an infringement,
the Member concerned should be informed of the nature of the complaint
and the precise rule of conduct alleged to be infringed. He should
also be advised of any relevant passages in the guidance; and
should be asked for his comments.
(d) The Commissioner frequently invites Members
to speak orally to herself or the Registrar. This can be sensible
but a careful record should be kept of the conversation and either
a summary or if necessary a transcript supplied to the Member
for his agreement or correction. If an apparent infringement is
disclosed at this stage, it should likewise be identified together
with the rule of conduct and guidance concerned.
(e) It is extremely important that Members
should know what infringement they are alleged to have committed
and where the relevant rules and guidance are to be found. This
is necessary to comply with the first rule of natural justice
and with the essential requirements of any fair trial, and with
Article 6.3(a) of the ECHR ie, the right "to be informed
promptly, in a language which he understands and in detail, of
the nature and cause of the accusation against him". I
have examined several reports of the Committee recently and this
requirement is not always adequately complied with.
(f) Once the Member has received clear written
notification of the charge, he should be asked to respond and
given the opportunity to do so both orally and in writing. It
is desirable that his primary response should be in writing. If
the Commissioner is calling other witnesses or obtaining other
witness statements, the Member should have an opportunity to see
them and if necessary to cross examine the witness. Paragraphs
2-10 of the Commissioners Report describe a procedure which is
largely informal. This can be helpful but is only acceptable provided
that the Commissioner is careful to ensure that the Member does
know clearly the nature of any criticisms she may be minded to
make and given a full opportunity to respond to them.
As stated, Members should have an opportunity
to see the evidence of witnesses and if necessary to cross question
In paragraph 11 of the 9th Report the Commissioner
says that she does not give Members the names of those from whom
she is seeking information. It is however essential that any evidence
on which the Commission proposes to rely should be shown to the
Member concerned who should have an opportunity to cross examine
Reporting to the Committee
Before the Commissioner reports, she should
follow the recommendations of Lord Salmon and the Council on Tribunals
and show the Member concerned relevant portions of her report
which are critical of him so that he may have an opportunity to
comment and correct as appropriate. In this respect the first
sentence of paragraph 18 is not acceptable. It is clear that on
three occasions the correct procedure has been followed. This
should however be the standard procedure.
This relates to legal and parliamentary privilege
and is not accurate as a matter of law. I would expect any communication
with the Commissioner in relation to an allegation of infringement
of the rules to be entitled to qualified privilege providing the
information is communicated only to the Commissioner. One would
not expect the Commissioner to publicise it further unless there
were some substance to the complaint.
It is undesirable, although it cannot be prevented,
that complainants should release their complaints to the press.
If they do so, they may not be protected by privilege if they
can be shown to have acted with malice. The Commissioner herself
should not discuss cases with the press.
16 October 2000