Select Committee on Standards and Privileges Fifth Report


Letter to Lord Neill of Bladen QC, Committee on Standards in Public Life, from the Chairman of the Committee on Standards and Privileges

I write on behalf of the Committee on Standards and Privileges to respond to chapter 3 of your Committee's Sixth Report, Reinforcing Standards.

I would first like to apologise for the time that has passed since the publication of your report without any reply from my Committee. The pressure of business has unfortunately made it impossible to send a considered reply until now, although we have discussed your report on a number of occasions. We have borne its recommendations in mind in our recent consideration of complaints.

The work of your Committee is much appreciated and we welcome the constructive approach taken in your reports. We can happily accept several of your proposals, relating to Members of Parliament and the criminal law, complaints to the Parliamentary Commissioner of Standards alleging criminal conduct, and the application of the advocacy rule to overseas visits. We would also be happy to endorse a proposal that the Chairman of our Committee be chosen entirely on merit, without any reference to party political affiliation.

We have concerns about a number of your other proposals. We believe that a first instance tribunal and appeals procedure in the House of Commons such as you propose would be unworkable. Members of Parliament are not like other professionals. We are elected for a limited period. Your Committee's proposals would in our opinion unduly delay and complicate the consideration of complaints, to the detriment of both the public and Members. We are not convinced that your proposals would be significantly fairer in practice than our own. We prefer our own report on Appeal Procedures.

We appreciate that you have been concerned to ensure that the House's disciplinary process fulfils the "minimum requirements of fairness" as set out by the Joint Committee on Parliamentary Privilege, as well as the requirements of the European Convention on Human Rights.

For the sake of clarity, I will set out below each of your Committee's recommendations, followed by our comments.

    R1.    The Government should introduce its proposed legislation on the criminal law of bribery as soon as possible in order to remove any uncertainty regarding the scope of the statutory offence of bribery and to make clear that members of both Houses of Parliament, acting in their capacity as members, and those who bribe a member of either House of Parliament fall within its scope.

We agree entirely.

    R2.     Where a complaint is made to the Parliamentary Commissioner for Standards alleging criminal conduct of an MP and the complaint is neither malicious nor frivolous, then the Parliamentary Commissioner should report to the Committee on Standards and Privileges with a recommendation that the matter be referred to the police for further investigation.

We hope that such cases will be extremely rare. If one were to arise, we believe the Parliamentary Commissioner should report to the Committee that the matter had been referred to the police for further investigation. We should do the same if the Commissioner had not.

R3.     'Trial' procedure in serious, contested cases

    1.  Where

      (a)  the Parliamentary Commissioner finds a prima facie case against an accused MP, the alleged facts of which, if true, would amount to serious misconduct, but

      (b)  the alleged facts are disputed by the accused MP,

    the Parliamentary Commissioner should report to the Committee on Standards and Privileges with a recommendation that the case be referred to a disciplinary tribunal consisting of a legal chairman sitting with either two or four MPs who should be of substantial seniority.

    2.  Before making a decision about whether to accept the Parliamentary Commissioner's recommendation, the Committee on Standards and Privileges should allow the accused MP an opportunity to make representations in respect of that decision.

    3.  If the Parliamentary Commissioner's recommendation is accepted, the accused MP should be provided with financial assistance to enable him or her to fund legal representation at the hearings of the tribunal.

    4.  The tribunal should be governed by procedures which satisfy the "minimum standards of fairness", as defined by the Nicholls Committee.

    5.  The tribunal should both act as fact-finder and decide whether, on the basis of the facts found, the charges against the accused MP are proved.

    6.  The tribunal should report its conclusions to the Committee on Standards and Privileges and, assuming no appeal is being lodged, the Committee should consider what penalty (if any) should be recommended to the House of Commons.

We do not accept this recommendation. We reject the idea of involving Members of Parliament in the process of investigation. This is not just because the task of carrying out long and complicated investigations would take up a disproportionate amount of any Member's time. It would also give grounds for complaint that the process was unfair and partial. Members have party allegiances, and are unlikely to be perceived as objective or independent either by the public or by a Member who has been complained against. This perception could be a serious handicap, particularly if a complaint against a Member of a minority party were to be investigated by Members predominantly or only of other political parties.

We also have serious reservations about the role of lawyers in internal House of Commons disciplinary matters. Whilst a lawyer might be well equipped to ensure procedural fairness, we are not convinced that the lawyer would be better placed than an independent Parliamentary Commissioner for Standards to assemble and evaluate the evidence in inquiries. The assistance of a legal assessor to the Parliamentary Commissioner in complicated cases, as we have recommended, would be a more appropriate measure to ensure that procedures are properly followed and that legal advice is available to the Commissioner as required.

We have been careful to ensure in recent cases that Members have had access to legal advice and help where they have requested it. We have noticed, however, that the involvement of lawyers has in some cases tended to prolong and complicate unnecessarily matters which could have been resolved swiftly through full co-operation between the Members concerned and the Parliamentary Commissioner. Lawyers are used to an adversarial system. Their involvement tends to encourage a view of the Parliamentary Commissioner as the prosecution, which we emphasise she is not. As well as verifying the evidence which a Member puts forward in response to a complaint, she is available herself to assist Members to gather evidence, and to rebut complaints against them where these are unfounded. The purpose of the disciplinary system is to establish the facts, rather than to make a case against an accused person.

We are always open to requests from Members that they be accompanied by a legal adviser, but we are not persuaded that assistance should be available from public funds for legal representation. The existence of free representation would sometimes lead to matters being prolonged unnecessarily by either the Member or the lawyer, and would constitute a potentially unlimited drain on public funds. Free assistance to obtain factual information is already available to Members from the Parliamentary Commissioner, although we appreciate that some Members may have mistakenly been ambivalent about her role.

R4.     Appeal procedure in serious, contested cases

1.  An accused MP who receives an adverse ruling from the first instance tribunal should have a right of appeal and should be entitled to financial assistance to pursue that appeal.

2.  The appeal should be heard by an ad hoc appellate tribunal, possibly a retired senior appellate judge sitting alone.

3.  If the appeal is dismissed, the Committee should report the result of the appeal to the House of Commons along with any recommendation as to penalty.

The final decision in any case as to verdict and penalty is now taken by the House on the recommendation of our Committee. The effect of your Committee's proposal would be to take the decision from the hands of the House to those of a retired judge, breaking the principle of self-regulation entirely.

Our view has been that an appeal tribunal should consider only matters of fact. Your Committee has commented that "Facts are not found in the abstract." This is true, but does not mean that a tribunal cannot confine its conclusions to matters of fact. We note that the first-instance tribunal which you propose would be set up only if "the alleged facts are disputed by the accused MP". We understand this to mean that the tribunal would consider whether the Member in question had done what he or she was alleged to have done, but that it would not consider whether what he or she was alleged to have done amounted to a breach of the Rules. We envisage an appeal along the same lines.

R5.     'Trial' and appeal procedure in other contested cases

    1.  In cases which, in the opinion of the Parliamentary Commissioner, do not warrant a referral to the full tribunal, the Parliamentary Commissioner should make a recommendation to the Committee on Standards and Privileges accordingly. The Committee should decide whether to uphold the recommendation of the Commissioner on the basis of the Commissioner's report and of the representations (if any) by the accused MP.

    2.  In those cases that remain with the Parliamentary Commissioner, the Commissioner should investigate the complaint and, on the basis of the facts found, decide whether the complaint should be upheld or dismissed. The Commissioner's decision should be reported to the Standards and Privileges Committee, which should, in turn, decide whether or not to adopt the Commissioner's report and what penalty (if any) should be recommended to the House.

    3.  In cases where an accused MP disputes the Commissioner's findings or conclusions, that MP should be able to appeal against the Commissioner's decision, such an appeal to be heard either by the Committee itself or by such ad hoc appellate body as it decides to appoint."

R6.    Disciplinary procedure in non-contested cases

    In non-contested cases, whether serious or minor, the Parliamentary Commissioner should, in accordance with present practice, report the (undisputed) facts and conclusions based on those facts to the Committee on Standards and Privileges, which, if it endorses the report, should recommend to the House of Commons what penalty (if any) should be imposed.

This is very much as we operate at present. We always offer a Member an opportunity to make representations to us if there is any possibility that we might recommend the imposition of a penalty as a result of a report from the Parliamentary Commissioner.

R7.    The disciplinary proceedings of the House of Commons should be held in public but should not be broadcast. This recommendation as to hearings in public does not extend to the private deliberations of the Standards and Privileges Committee or of any disciplinary or appellate tribunal (which should remain private).

All our experience points to proceedings of the Committee being held in private. We have generally published the oral evidence which we have taken in private together with the relevant report. Furthermore, the final part of the disciplinary process (where this is necessary) is carried out in the full glare of publicity on the floor of the House of Commons. Any Member wishing to raise a grievance publicly has the opportunity to do so at this stage.

R8.    The House of Commons should take measures in relation to the Committee on Standards and Privileges, with a view:

    (a)  to ensuring that a substantial proportion of its members are senior MPs, and

    (b)  to exempting the Committee from the convention that its chairman should be drawn from the Government benches.

Our Committee, like all committees of the House, should represent the balance of parties in the House as a whole. We agree that the Chairman need not be drawn from the Government benches. We believe the Whips should not include this Committee in their consideration of which party should hold which select committee chairmanships. My Committee has asked me to say that it chose its Chairman without reference to party allegiance.

R9.    The ban on paid advocacy should be retained.

We agree entirely.

R10.  The guidelines relating to the ban on paid advocacy, set out in the Guide to the Rules relating to the Conduct of Members, should be amended so as to make it possible for an MP who has a personal interest to initiate proceedings which relate in a general way (and not exclusively) to that interest, subject to the following safeguards:

  • the MP is prohibited from engaging in 'paid advocacy' on behalf of that interest;

  • he or she is required to register and declare the interest in accordance with the guidelines;

  • he or she must identify his or her interest on the Order Paper (or Notice Paper) by way of an agreed symbol when initiating a debate.

We have discussed these recommendations, and have decided that there is a case for exempting overseas travel from the rule which bans the initiation of parliamentary proceedings where there is a paid interest. We will be recommending accordingly to the House.

We are reluctant to propose any more general change to the rule. Your recommendation would amount to a considerable relaxation of the current guidelines, as it would allow the initiation of any parliamentary proceeding which did not seek to confer benefit exclusively upon the body or individual with whom the Member had a registrable connection. The prohibition could therefore be avoided by framing questions, amendments, &c., in general terms; for example, a Member remunerated by an oil company would not apparently be precluded from moving an amendment to the Finance Bill to benefit all oil companies. In our view to relax the rules to such an extent would fatally undermine the ban on paid advocacy which we have agreed we need to retain.

We are glad that our Committees have found some common ground. The debate is useful and seems more likely to create a workable and fair disciplinary system for the House than if either of us were working in a vacuum. Once again, may I express our gratitude for your Committee's work.

4 July 2000

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 23 March 2001