Select Committee on Standards and Privileges Minutes of Evidence

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 full debate.

  I have one or two comments of a more detailed nature.

  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 5—Gifts & 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 be followed.

  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 them.

  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 where appropriate.

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.

Paragraph 21

  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

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