Select Committee on Standards and Privileges Fifth Report

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

Thank you for your letter of 4 July 2000 in which you set out your committee's response to my committee's recommendations contained in Chapter 3 of our Sixth Report, Reinforcing Standards. We welcome your support for the recommendations relating to Members of Parliament and the criminal law and to the application of the advocacy rule to overseas visits. On the latter, we are aware that you have recently published a consultation paper (710 (1999-2000)) covering this issue (amongst others). When we have completed our present enquiry, my colleagues and I will wish to consider your consultation paper with care. We shall do our best to make any comments we may have in time to meet your deadline of 6 November 2000.

The principal issue on which we differ with your committee concerns our recommendations in relation to the investigatory, 'trial' and appeal procedures in serious, contested cases.

The 'trial' procedure

You reject my committee's recommendation (Recommendation 3 of the Sixth Report) that the 'trial' of a serious, contested case should be undertaken by a tribunal consisting of a legal chairman and either two or four MPs (of substantial seniority). In your letter you state:

    "We do not accept this recommendation. We reject the idea of involving Members of Parliament in the process of investigation".

Your reasons are, first, that such involvement would take a disproportionate amount of any Members's time and, secondly, there would be a risk that the process would be perceived as unfair and partial because Members are party political. You also indicate your reservations about introducing lawyers into the Commons' disciplinary procedures.

I believe that there may be some misunderstanding about aspects of our Recommendation 3, and I think it would be helpful if I were to add some further clarification.

Although we refer (in the text of the report) to the tribunal in Recommendation 3 as an "investigative tribunal", our meaning was not that the tribunal would investigate in the sense of assembling the facts of a case. This task is one properly undertaken by the Parliamentary Commissioner. The role of the tribunal would be to 'try' the case: that is, it would act as adjudicator and fact-finder (that is, draw conclusions about the facts on the basis of the evidence amassed by the Parliamentary Commissioner and any evidence adduced by the Member complained about).

It is a fundamental principle of procedural fairness that the functions of 'investigator' and 'adjudicator' should be carried out independently of each other. Although we accept that in contested cases which are not serious and complex it it reasonable for the Parliamentary Commissioner to perform both roles (which is the current practice), we believe that such a convergence of functions would fail to meet (or would be perceived not to meet) the requirement of fairness in serious, complex cases.

On the more practical issue of whether MPs would have time to sit on such a tribunal, I would like to make three points: first, we make clear in the Sixth Report (at paragraph 3.27) that we anticipate that contested allegations of serious misconduct are likely to be very rare; secondly, again a point raised in the Sixth Report (at paragraph 3.45), we take the view that if MPs are unable or unwilling to participate in their own disciplinary procedures, then Parliamentary self-regulation in this area would appear to be unworkable; and, thirdly, in suggesting that the tribunal should include two or four senior MPs (who would not be members of the Standards and Privileges Committee), we were taking account of your evidence that members of your Committee were not in a position to assume the additional workload that might be involved in membership of such a tribunal. The second of these points also bears on your argument that MPs would not be perceived as impartial investigators: if self-regulation in disciplinary matters is to continue, then MPs must be trusted to be able to carry out quasi-judicial functions impartially. And surely this would be much more likely were you to adopt our recommendation that cases should be 'tried' by a small group of senior MPs.

Finally, in relation to the 'trial' stage, I would like to draw your attention to a misunderstanding in the second paragraph of page 4 of your letter. It states:

    "We understand ... 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."

As we said in the Sixth Report (paragraph 3.47), it is our belief that fact-finding cannot be separated from adjudication in this way. On this premise, we made the clear recommendation that "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" (Recommendation 3, paragraph 4).

Appeal procedure

We understand the point you raise the proposed appeal mechanism. However, our difficulty was that, if we were right in recommending that the trial should be in the hands of senior MPs, it seemed odd to recommend that the appeal should be conducted in front of another group of senior MPs.

I know that these are complex matters and I appreciate the many demands on the time and energy of Members of your very important Select Committee. But it is my hope that, in the light of this letter, you and your colleagues will be persuaded to re-consider your decision in respect of our recommendations relating to the disciplinary procedure in the House of Commons.

3 October 2000

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