CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 960-ii i

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

Procedure Committee

Lay Membership of the Committee oN Standards and Privileges

wednesday 15 June 2011

Sir Christopher Kelly

Mr Bernard Jenkin

Evidence heard in Public Questions 62 - 105

USE OF THE TRANSCRIPT USE OF THE TRANSCRIPT

1. This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2. The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the Procedure Committee

on Wednesday 15 June 2011

Members present:

Mr Greg Knight (Chair)

Mrs Jenny Chapman

Thomas Docherty

Mr Roger Gale

Helen Goodman

Mr James Gray

Tom Greatrex

John Hemming

Mr David Nuttall

Jacob Rees-Mogg

________________

Examination of Witness

Witness: Sir Christopher Kelly KCB, Chair, Committee on Standards in Public Life, gave evidence.

Q62 Chair: Sir Christopher, welcome, and thank you for coming. I apologise on behalf of the Committee for keeping you waiting. We had a division on the floor of the House that has slightly thrown us out in terms of timing. As I am sure you are aware, the House has asked us to look at the issue of having lay members on the Committee on Standards and Privileges. The House has agreed with the principle but has asked us to look at it, and that is what we are doing, and that is why we value your contribution today. Is there anything you want to say by way of an opening statement?

Sir Christopher Kelly: Not particularly, thank you. Thank you very much. I suspect it will be more help if I simply answer questions.

Q63 Chair: Could you perhaps then start by telling us what has led to the apparent change of heart by the Committee on Standards in Public Life because I understand back in 2002 you didn’t think this was necessary, but in 2009 you appeared to think it was necessary. Could you just give us some background as to why you have moved in this direction?

Sir Christopher Kelly: Of course. Although the same name, it was an entirely different committee membership in 2002 than it is now of course. I don’t think there was an overlap in membership. I think there are two reasons for that. One is because the world has moved on quite a lot since 2002, both in terms of what the outside world thinks about self-regulation of professional bodies, and indeed, the reputation of the House of Commons, and secondly, what our predecessor committee did say in their report that I have in front of me is that following a long passage in which they doubted whether the House would be prepared at that stage to accept the notion of lay representation on the Committee on Standards and Privileges, they did say, "We recognise a strong case could be made out, but we don’t think it is necessary". But they then went on to suggest a range of other measures, some of which were adopted by the House and some of which were not, one of which was the referral of serious cases to an investigatory panel with an independent chair. So I think it is probably true to say, although I wasn’t of course around at the time, that they were in two minds; they thought of addressing it in a different way. As I say, time has moved on since then.

Q64 Chair: Would you say that generally other professional bodies have moved towards having lay members take part in decisions of this sort?

Sir Christopher Kelly: I don’t know. I have not done a full survey of other professional bodies, so I don’t know whether there has been more movement since 2002. There was already quite an established precedent for having lay members in 2002, and the particular bodies quoted then were the General Medical Council and the Bar Council.

Q65 Chair: Why do you think the presence of lay members would increase public confidence in the system?

Sir Christopher Kelly: I think for the same reasons as those other bodies have adopted lay membership. One is because I think it is almost certainly likely to be the case that having an independent viewpoint injected into the deliberation of any body of this kind is likely to add to the quality of decision making; it is nothing about the integrity of other people on whatever the committee, it is simply the notion that it is almost always helpful to have independent insight. The second is because I think some of the decisions that the committee takes-or indeed, that other disciplinary bodies take-are often complex and misunderstood, and some of the reaction to decisions that may look a bit odd is often because people have not understood the full range of circumstances that have been taken into account when the decision was taken. In those circumstances, I think it is helpful for people to know that there has been some independent input and it is not simply peers judging peers, with a suspicion that that might mean that they are looking after their own.

Q66 Mr Gray: There are two sides to the Chairman’s question. One is whether or not lay members would benefit the committee and make it work better. The second was whether or not the public would take a better view of the CSP if there were lay members on it. In answer to the second question, if the answer to that were to be yes, there would have to be some evidence that firstly the public had a low opinion at the moment of the Committee on Standards and Privileges, and secondly, that that would be improved by appointing lay members. That was the question. Is there any evidence? Has there been any polling, or do we know any reason for thinking that the public think badly of the committee now and believe that that would be improved with more lay members?

Sir Christopher Kelly: I suspect that the vast majority of people have no idea of the existence of the committee, of course, and certainly I am not aware of any polling evidence. In a sense, I think I would put the question the other way round, which is does this Committee and House think it would be credible for Parliament to take a different view about the involvement of lay people than the equivalent bodies for all other professions?

Mr Gray: That is a different question. To those who would say, "The public’s opinion of Parliament would be improved if we do this thing," the answer is that there is no evidence that is the case at all.

Sir Christopher Kelly: I think that what would happen would be that some of the media commentary that there has been after particular decisions that were taken by the House would have less substance behind them, and the views of the public are of course influenced by what the media say about you.

Q67 John Hemming: Just one little question to follow on, if you don’t mind, from the previous one: are there any decisions of the Committee on Standards and Privileges that you think historically would have been improved by virtue of having a lay member?

Sir Christopher Kelly: I have no idea. I have not studied in detail-

John Hemming: Where the issue becomes more complex is where I am intending to come in, which is in the context of the issue of privilege, because you are currently a witness in a committee and are participating in a proceeding in Parliament, so you are protected by privilege. The danger that has been identified for the committee is not what you describe in your evidence-on the face of it, issues of privilege should not arise in relation to most of the matters considered by the Committee on Standards and Privileges, which could be resolved by having two committees anyway-but that if there is a voting member of that committee who is a lay member, that that would not be a proceeding in Parliament and therefore not covered by privilege, and all the publications people could sue on, however they wish to do. Hence we have this question, which is: could lay members be seen to have a decisive influence without being able to vote? It is that issue of the lay members voting that causes the challenge with privilege?

Sir Christopher Kelly: Yes. My response to that has a number of parts. One would be, I have read carefully the evidence you have received and I see it is not entirely unanimous as to whether or not the issue of privilege would arise in that sense, but I don’t in any way hold myself up as an expert on these issues. You have had much better evidence from other people on that. Secondly, this is an issue that is faced by the Bar Council and the GMC and everybody else, who have not historically enjoyed the protection of privilege on this issue of libel, and they seem to have coped with it, although again I don’t profess to be an expert on that. I am not aware of any particular issues arising from that. Thirdly, my personal view-even though it is not backed by polling evidence-is that this is a sufficiently important issue for the reputation of the House for a lot of effort to be put into trying to find some way of addressing it.

I was rather impressed by the evidence of Sir Philip Mawer and a number of others, suggesting that if you did not give voting rights to lay members that would create the impression of first and second class members of the committee. I am not sure whether that helps to establish a credible position.

Q68 John Hemming: Is your view therefore that you might as well not have a lay member if they don’t have voting rights, and in losing privilege through that, that would be a price worth paying?

Sir Christopher Kelly: No, I wasn’t saying that, and I do not think it would be better to have no members than to have a member without voting rights. I think it would be something greatly to be desired if a way could be found of giving voting rights without creating overwhelming problems of privilege.

Q69 John Hemming: So from your point of view, it is important to maintain the privilege?

Sir Christopher Kelly: Of course it is important to maintain the privilege, but as I say, not necessarily from the point of view of maintaining protection against libel. I realise there are a number of other considerations.

John Hemming: The privilege applies to consideration by the courts for contempt of court and libel, and what I am trying to get to the bottom of is that the concern is that in having a voting lay member, that would be lost. There is an argument both ways, but I am trying to get to your view on where-your preference seems to apply to keeping privilege and therefore having the non-voting lay member, if necessary.

Sir Christopher Kelly: I am not sure I said it quite that way. I thought there was also another aspect, which is not wanting to make the proceedings of the committee subject to judicial review, which is a separate issue.

John Hemming: That is also an issue, yes.

Sir Christopher Kelly: A separate issue from libel. No, what I was expressing support for of course was the doctrine of parliamentary privilege. What I was expressing doubt on, solely on the basis of the evidence you have received, is whether it is true that giving members voting rights would endanger privilege and create that difficulty. But that is an issue for you to decide, and as I have said, I am not an expert on the subject.

Q70 John Hemming: If we come to the conclusion that it would damage privilege, you would accept that it would be necessary then for a lay member not to have a vote?

Sir Christopher Kelly: I think it would be a great shame to create first and second class members of the committee, and I am not sure that that would serve the purpose, which is to improve the credibility of the disciplinary process in the House.

Q71 John Hemming: From your point of view then, you might as well not have a lay member if they don’t have it?

Sir Christopher Kelly: No, I specifically said that is not the view I take, and I have noted the advice you have had from the Clerk of the House about alternative ways of achieving the same objectives. I think what I am trying to say-in an obviously inadequate way-is that I think the existence of lay members is very important, but I think it would be a great shame if you were to come to the conclusion that it was impossible to do that and give them full voting rights. But I would still say to you that my personal view would be it would be better to have lay members with the additional conditions suggested by the Clerk than no lay members at all.

Q72 Chair: If lay members were to take part in this process, but did not have voting rights, I would expect them to have a right to express their view, and would you not see them being just as effective if in any report the lay member was to say that he regarded the punishment imposed by the committee as wholly inadequate? That would be quite devastating, wouldn’t it-

Sir Christopher Kelly: Indeed, it would.

Chair: -if the lay members recorded that view? So they could play a worthwhile role, could they not, without voting rights, provided the report recorded their view of the conclusion of the committee?

Sir Christopher Kelly: I agree with that statement. I think there could still be a worthwhile role for them to play, but I repeat my view that it would be a shame if you were not able to find a safe way around this issue, because it would create the impression that there were first and second class members of the committee, which I don’t think would serve credibility. In the ultimate scenario there is always the possibility of legislating to put the matter beyond doubt, although personally I would not want that to be used as a reason for delaying making the change.

Q73 Mrs Chapman: My questions are on the practicalities of how we make this work, so I would just like to get your view on how many lay members you think would be appropriate, and linked to that, what would be an acceptable quorum of lay membership at a particular meeting. Also, it has been suggested that the lay member may act as chair of the meeting, which does seem attractive in some respects, but how would that person then be answerable to the House? If we could just have your thoughts on those issues, please.

Sir Christopher Kelly: It would be wrong of me to pretend that my committee had spent a lot of time debating these issues of practice, and so anything I say should be taken in that context. What we said was at least two members. The reason we said at least two was because we thought one wasn’t enough, in the sense that if there is only one, that person can be isolated, bullied, what have you. Two would create a more sensible number. Two still carries with it the possibility, of course, of unavailability.

Mrs Chapman: That is right.

Sir Christopher Kelly: I notice that some of your witnesses have suggested three, and there is nothing in what we have suggested that would rule out three. Three in some ways is a better number than two. As to a quorum, a number of suggestions have been made. I don’t have a particularly strong view in favour of any. Clearly, the process doesn’t work unless at least one member is present. Two members would be better. A lot will depend upon the practicalities of doing it, rather than, I think, any great matter of principle.

Is it necessary for a lay member to be a chair? No, I don’t think it is necessary in order to achieve the objective. It is certainly a possibility that, as I understand it, some other regulatory bodies may have accepted. It would help to put the matter of independence, I would have thought, beyond doubt, but I don’t think it is a necessary part of the process to do that.

Q74 Mrs Chapman: If the lay member was the chair though, do you think there is a problem that we should be concerned about in terms of them being answerable to the House?

Sir Christopher Kelly: The House has other ways of holding people to account, including this. I am not sure how good a precedent it is but I see that I think it was the current chairman of the committee who drew your attention to the precedent of the Church Commissioners, and the fact that a parliamentary member of the Church Commissioners speaks to the House for the Church Commissioners.

Q75 Helen Goodman: Sir Christopher, I would like to come back to the point that James Gray was making. Are you saying that you can’t think of any reports in the last three or four years where there is question mark about the punishment that the Committee on Standards and Privileges made to a Member who had ripped off the taxpayer to the tune of thousands of pounds?

Sir Christopher Kelly: No, I am not saying that, because I am as conscious as I suspect you are of a number of cases where certainly the media have suggested that the punishments that were meted out were inadequate for the transgression, and I have personal views about that. What I was trying to say was the only information I have to go on in two of the most prominent cases is what I read in the media, and the fact I read the reports of the committee. I haven’t had the advantage of hearing the evidence that the committee had, so I hesitate to express a view without having all the facts.

Helen Goodman: Well, that is a-

Sir Christopher Kelly: It is a practice I have tried to follow in chairing this committee, which is avoiding commenting on individual cases where I am not in full possession of all the facts.

Q76 Helen Goodman: That is true. The reason it comes back to the point that James Gray was making was of course if there is no criticism to be made of rulings that Standards and Privileges have made, then we are in the arena of appointing people to raise public confidence, rather than to change the decision making. Would you agree with that?

Sir Christopher Kelly: Indeed, yes.

Helen Goodman: So we are looking-in your estimation-to do both, to have people who will raise the confidence and who will have a substantive input into the quality of the decision making.

Sir Christopher Kelly: Indeed. Thank you for putting that better than I did.

Q77 Helen Goodman: Do you think then that the process that we have followed for appointing people to SCIPSA was a good process?

Sir Christopher Kelly: To the extent that I understand it, the answer to that question is yes, and I think I understand it quite well, because I think one of the members of my committee was represented on the panel as one of the independent members.

Q78 Helen Goodman: Well, of course there can be no higher recommendation than that. I am interested that you say that, because I think there is a criticism that the kind of people who have been appointed hitherto are probably, in many respects, quite similar to Members of Parliament.

Sir Christopher Kelly: Yes.

Q79 Helen Goodman: If they are quite similar to Members of Parliament, we wouldn’t get either a sufficiently different perspective to have an impact on decision making, nor a substantial improvement in terms of the public confidence. Do you think that is true, or am I-

Sir Christopher Kelly: I understand the argument that has been made, that simply appointing standard members of the great and the good doesn’t necessarily do the trick. I think that the important thing is that the appointments process should start from a clear understanding of what the qualities required on the committee are, and I take those to be things like independence of view, ability to sustain an argument and be robust against pressure, ability to understand evidence, those sort of things, which are characteristics that are not necessarily only found in the ranks of those who typically join the shortlist of appointments like this.

Q80 Helen Goodman: No. Do you think that particular experience in terms of employment and human resources and that sort of thing might be valuable?

Sir Christopher Kelly: I think there is a range of backgrounds that might be valuable, because there are a range of ways that the necessary qualities and experience can have been gained.

Q81 Helen Goodman: How would you set about having a pool of people that went wider than the existing filter has produced?

Sir Christopher Kelly: As I understand it-and I speak subject to correction-I think that headhunters were employed to help find candidates for the Speaker’s Committee for IPSA, and, as always with these things, it starts from the nature of the advertisement that you draw up, where you put that advertisement-just putting in the Sunday Times is not necessarily the right way of securing people of the right kind-and the instructions that you give to the headhunters as to the sort of areas in which they should be searching.

Q82 Helen Goodman: So assuming that the chair of the committee were to be a Member of the House, not one of the lay people being appointed, do you think that the chair of the committee should have some involvement in the recruitment process?

Sir Christopher Kelly: That is an interesting question. Speaking as someone who has chaired a number of boards and committees in my time, I would be quite cross if I did not have a role in choosing members of the committee that were going to join me. On the other hand, in these circumstances, since credibility is particularly important, there might be a strong case for the chair of the committee not being involved in the way that, as I understand it, it was in choosing people for the Speaker’s Committee. Although a recommendation was made to the Speaker, the Speaker did not have a role in it, and indeed, I think that panel was chaired by an Officer of the House.

Q83 Helen Goodman: So in that case, the chair might be involved in drawing up the plan for the advertising, possibly the questions that they wish to have covered in the interview, but not carry out the interview.

Sir Christopher Kelly: You are pressing me into an area that I had not given as much thought as I clearly should have done, but I think that would probably be what I would advise.

Helen Goodman: Thank you very much.

Q84 Mr Gale: I would like to go right back to the beginning, and to James Gray’s question. We appear to be once again being pushed into a realm where we are mending something that isn’t broken, for a purpose that is not entirely clear. You were asked whether you felt there was a lack of public confidence in the committee, and your reply was that you thought that most members of the public didn’t even know there was such a committee. Then you went on to say that having lay members might somehow mitigate media reports that were adverse, so is the process being driven by the Guardian or the Daily Telegraph or the Sun? Then you were asked by Helen Goodman, "Well, was the purpose of this to raise public confidence?" and having said that the public didn’t seem to know much about it at all anyway, you then said yes. You have not offered any evidence for the conclusion that your committee appears to have come to. There does not seem to be any reason at all behind the need for change. Can you clarify that?

Sir Christopher Kelly: I will certainly try, Mr Gale. There is no lack of polling evidence that politicians in general are held in low esteem by members of the public, and there are conflicting surveys, and some of them show no change and some of them show after what happened on MPs’ expenses that confidence and trust went down, but esteem is certainly low. I think it is also the case that over the last 20 years in all those areas where self-regulation used to be the norm, that practice has now stopped, and it has stopped for reasons that presumably all those concerned thought that you got better decisions if it was not just self-regulation, and that public confidence in the process of regulation would also be increased. So the absence of any polling evidence, which is what I was particularly asked about by Mr Gray, does not seem to me to mean that there is no evidence that a step of this kind would be helpful in maintaining the credibility of the House of Commons.

I think you would also find that-although I have not done so-if, having explained to members of the public that the Committee on Standards and Privileges did exist, you were to ask whether they thought it was acceptable that that committee should consist solely of Members of Parliament, I suspect-but I have no proof that this would be the case-they would answer no.

Mr Gale: Well, that is a bit of a "When did you stop beating your wife" question.

Sir Christopher Kelly: No, if I may say so, I think it is about the House of Commons showing leadership in maintaining its own credibility in an area in which almost every other profession has already moved.

Q85 Mr Gale: I am sorry, I have to press you on this. You seem to be confusing two things. You raised the canard that Members of Parliament are held in low esteem. Mr Gray says it was ever thus; it was ever thus. That is not the same as the committee that we are talking about being held in low esteem. There is no evidence to suggest that there has been any serious criticism of any decision taken by the committee or of any individual members of the committee, or of the manner in that the committee is working. Now, again, we have something that appears to work, has worked, continues to work, so why do we want to change it?

Sir Christopher Kelly: Ms Goodman pressed me on the issue of whether or not there were examples of committee decisions that looked a bit odd, although that wasn’t quite the way she expressed it, and there have certainly been a number of cases in the past couple of years where there has been extensive comment on the apparent leniency of the sentences that were voted on by the House of Commons.

Mr Gale: You very carefully chose not to go down that road, because quite properly, you said you had not heard the evidence, and the journalist concerned had not heard the evidence. The committee has done its job and it has done it well, so I-

Sir Christopher Kelly: Well, in a sense, if I may say so, Mr Gale, you are making my point. You said there is no evidence that there was any disquiet about it. I was suggesting to you that there was evidence that there was disquiet about individual decisions.

Q86 Mr Gale: Are you going to offer some evidence to justify that remark?

Sir Christopher Kelly: There was plenty of media comment about the decision that was taken in relation to Mr Conway; there was plenty of media comment in relation to the decision that was taken about Mr Laws.

Mr Gale: But media comment is not evidence.

Sir Christopher Kelly: Your question to me, I thought, was about whether I was aware of any public criticism of those decisions, and I regard that as being public criticism.

Q87 Mr Gale: We are going to have to agree to disagree, but let me just try one other point that Helen Goodman raised again, which is that we see a developed repertory company, a quangocracy, that moves seamlessly from appointments of this kind to appointments of this kind. How do you think we might break away from that so that the usual suspects do not simply get reappointed, if we are going to down this road at all, to this committee, as they seem to be to virtually every other committee?

Sir Christopher Kelly: I tried to deal with that in my response to Ms Goodman. I am not sure I have anything further I can usefully add.

Q88 Mr Nuttall: Thank you, Sir Christopher, for the evidence that you have given so far. I believe that the House of Commons is fundamentally different from those professional bodies that have historically been part of the self-regulation system, in that all the Members of this Committee and all the members of the Committee on Standards and Privileges are in fact no more than members of the general public themselves, who have been chosen through a democratic election by our peers to represent them in Parliament. I am just a member of the public who happens to be a Member of Parliament because my constituents have put me here, yes? I am a member of the public, I am a Member of Parliament because other members of public have elected me to represent them, and I fail to see-and I can’t see-how the democratic legitimacy and the strength of the committee would be increased by putting two members of the public on who have not been elected by 70,000 people or thereabouts, but have been chosen by a few people behind closed doors. Do you think that the general public would think that putting two people on a committee of 10 will strengthen it?

Sir Christopher Kelly: Yes, I do, or I would not have proposed it. The ultimate sanction of democratic accountability is that the committee makes recommendations to the House as a whole, and it is the House that takes decisions. One of the issues is that almost all groups of individuals always think that-let me rephrase that. The risk that I tried to outline in the beginning is of people thinking that decisions that are taken by committees of peers are self-interested, and I am not sure that I understand how the fact that you are elected guards against the risk of people thinking that in taking decisions about peers, you may be pursuing self-interested reasons.

Q89 Mr Nuttall: Is there not a danger that by putting two members of the public who have not been elected on there simply serves to further undermine the general standing of Members of Parliament who have been elected?

Sir Christopher Kelly: I am afraid I don’t understand how that could happen at all. So the answer to your question has to be no, I don’t think that it would happen.

Mr Nuttall: Well, if these proposals were to go through, members of the public who have not gone through the process of a general election, who have not been elected, have the same voting rights as those who have, and that surely to some extent demeans and starts to undermine the democratic legitimacy of those who have been elected in a general election.

Sir Christopher Kelly: I am afraid I still don’t understand that argument. What we are talking about is a disciplinary process. We are not talking about the exercise of democratic rights.

Q90 Mr Gray: There have been a couple of decisions of the committee that have been questioned by the press. There is no real evidence that had there been lay members of that committee at that time those decisions would necessarily have been different, although they might have been. Therefore, coming back to the Chairman’s original point about the question of whether or not privilege would itself be undermined by having voting members of the committee, is there not an argument that what one ought to have would be Members of Parliament being the voting members of the committee, but having mentors, if you like, or lay people not voting but, as the Chairman suggested, having the ability to say, "In our lay opinion, this particular penalty" for example, in the two cases you mentioned, "is absurdly low." That would make them significantly more powerful than if they were merely a voting member of the committee, because after all, a voting member of the committee might be outvoted-it could be 10 to two against. If they were independent mentors sitting on the committee and saying, "We don’t agree with that particular penalty or a particular Member of Parliament" you would both preserve the privilege point, but you would also have a watchdog. I suspect that is the point you make about once you have opened this can of worms, reversing it would make us appear to be self-serving and protecting ourselves, and is there not a possibility that that solution might answer the public perception question, while at the same time preserving privilege?

Sir Christopher Kelly: I think there is a possibility that it would do that, and that is not a million miles away from the proposal that I drew attention to, the 2002 version of our committee. Just to pick up something else you said at the beginning of that, of course I don’t know whether any of those decisions that were criticised would have been different if there had been lay members, but it would have been possible for someone to have stood up in the face of that criticism and said, "This is not just the view of MPs judging their peers or even allowing party political considerations to play a part, because there were these fine, upstanding lay members who also played a part in the committee." That defence is denied you if you do not have them there.

Q91 Chair: Thank you. Do you wish to add anything?

Sir Christopher Kelly: I don’t think so, thank you very much. I am sorry that Mr Nuttall thinks I don’t understand the relevance of his question.

Mr Nuttall: It is perhaps a wider point.

Chair: Well, thank you very much for your contribution, which we value and will assist us in reaching our conclusion on this rather difficult matter. Thank you.

Examination of Witness

Witness: Bernard Jenkin MP, Chair, Public Administration Select Committee, gave evidence.

Q92 Chair: Bernard, thank you for coming. We are running late, primarily because of the division, but also because that last contribution encouraged rather more questions than I expected when we started. Is there anything you want to say upfront, as it were, by way of a statement to us?

Bernard Jenkin: No, but if I may, I will, having listened to some of those previous exchanges, just make two points. First, I very much support the memorandum that you have received from the Clerk of the House. It presents a very balanced approach to this, and you might want to question me around those issues. But secondly, because Parliament has fallen into ill-repute-starting 20 years ago; this really started going bad when the first Nolan Committee was appointed-there has been a fashion that somehow people outside politics are more objective in giving opinions and making judgements about people in politics than people in politics themselves. We have to accept that that has been a very strong public perception, but that it is not necessarily the case. We are almost straying into a sort of Cromwellian age where Cromwell, having asserted the rights of Parliament, then proceeded to usurp the rights of Parliament and set up his own committees to oversee and supervise Parliament-the Committee of Generals or whatever it was called-because he regarded this diverse, rumbustious and disputatious group of people as rather unfit to carry out the solemn business of supervising the Government of the country, which, in his puritanical mindset, he was much better fitted to do.

Without wishing to denigrate the public-spirited motives of many of our great and good, I feel that they are rather sorry for Parliament, and they see a lot of people in Parliament of less education and inferior intelligence and they want to help us. But I am not necessarily sure that allowing them free rein to do that is good for Parliament or good for democracy. So I think some of the resistance that we instinctively feel for this is extremely justified, though we have to accommodate the public perceptions and respond to the public concerns that I think Sir Christopher was expressing.

Chair: Thank you. For someone who didn’t want to make an opening statement, that was a very interesting start.

Q93 Mr Gale: This is a bit tricky, because you have sat in on the previous line of questioning.

Bernard Jenkin: Some of it.

Mr Gale: In a sense, you have answered therefore the first two questions, but let me formally ask you. Because you have heard me ask the questions, you know that my view is that Sir Christopher has offered no evidence whatsoever to justify the need for change, other than a perception, but if perception is all-important-if perception is all-important-would it help to resolve some of the difficulties with public perception if we had lay members on the committee?

Bernard Jenkin: I would hesitate to be so confident that the inclusion of lay members in some capacity would resolve the issues, but they remove another potential cause of it. I am very particular about how we do this, and I think you will want to move on to that line of inquiry, but as Sir Christopher was saying, it is practice in the City and in other professions to have independent scrutiny, a different viewpoint, an outside view. I think if the committee recruits people with the right skills, complementary skills-it has always occurred to me that in its standards role, the Committee on Standards and Privileges is undertaking a judicial function, but it is very, very short on juridical experience, juridical practice. There is an argument that the commissioner should in fact be a judge, because it is all about interpretation of rules and evidence, and if you want a fair trial, you would not submit to a judge who had not been trained to assess rules and evidence. So maybe the lay members should be recruited with specific skills in mind to help advise the committee on how to reach fairer, more justifiable, more legally analogous decisions than we are tempted to do.

But at the same time we need to recognise that all people in public life are subject to the same kinds of pressure. I think Sir Christopher was under enormous media pressure at the time he produced the response to the expenses scandal, and I do not suppose that in the end his judgement was any more objective than anybody else’s, and we need to dispense with this idea that somehow that there is a sort of college of superhumans who are above all influence, because they’re not. As the democratically elected representatives, I think ultimately we must remember that we are a sovereign Parliament and the buck stops with us, and we can’t give that up.

Q94 Mr Gale: If we were to go down this road, should the lay members have voting rights?

Bernard Jenkin: Well, I can’t see the point of it. I don’t see what benefit there would be of giving lay members voting rights. So long as their opinion is made publicly available alongside any decision of the committee, they effectively have a vote. Any published opinion would be regarded as proceedings in Parliament, but as soon as you let them vote and influence the decision, my understanding is that the Committee on Standards and Privileges acting in that capacity could be interpreted to have ceased to be a committee of the House. It has become something else, and therefore you have lost all the protection. Those lay members themselves might find themselves subject to judicial challenge for the way they have exercised their power.

Q95 Mr Gale: The Chairman raised the point that these people, if they didn’t have voting rights, could speak out and say, "We don’t think the decision that has been reached is adequate or meets the need." If you are appointed to a committee like this as a lay member, if you are a superannuated, knighted civil servant and you wish to be seen to be doing the right thing, you are almost instinctively, are you not, going to disagree with the committee? So isn’t there almost a danger of appointing a built-in bias against whatever decision is taken?

Bernard Jenkin: Well, I think that very much depends on who is appointed. If two or three people were appointed with, say-I heard mention of somebody with HR skills, understanding how an employer should deal with employees. If somebody was appointed who had been involved with adjudicating on criminal or civil cases, somebody who was used to dealing with making judgements about complex financial information, subjective judgements, perhaps somebody who had been an adjudicator in the Inland Revenue or somebody like that, you could bring to the committee skills that were technical skills, and would make it more difficult for the committee to act in a subjective manner and certainly make it more difficult to accuse the committee of acting in a subjective manner.

But I don’t like the idea of lay members. They would be advisors, albeit advisors perhaps who have special privileges attached to their status, such that the committee can’t meet without taking their advice, can’t make decisions without publishing their advice, so that they would act as a check and a regulator on the way the committee performs, but improving the technical competence of the committee.

Q96 Chair: Do you agree with James Gray though the fact they do not have voting rights could enhance their influence and not diminish it, because if instead of saying, "We concur with the committee’s decision" these advisors or mentors or lay members were to say, "We regard the conclusions of the committee as woefully inadequate in this instance," at the end of the day, their view must prevail, must it not?

Bernard Jenkin: Well, it depends on two things. It depends what sort of lay members they are. If they are chosen at random like jurists, I would expect it would be rather easier to ignore their opinion than if they were chosen for their technical skills. If they were chosen for their technical skills and their professional skills, one would expect them to wish to confine their criticisms to technical aspects rather than the more subjective aspects of the committee’s decisions, and also, it would depend upon the nuance with which they each made their commentary. If they flatly contradicted the opinion of the committee, yes, it would be a time bomb. It would blow the credibility of the committee out of the water. But I think the question is how these people are chosen and what skills they are chosen for and how their responsibilities are defined. I don’t think they can sit as equals of Members of Parliament in all respects with equal powers and equal status, partly because of the privilege question, but I just don’t think it-otherwise, we might as well scrap self-regulation altogether and go for some sort of statutory process, which would at least be totally independent and fair, in which case we do pass a law about how Members of Parliament conduct themselves and we leave it to the courts to decide. But it seems to me that that is not the point of the committee. The point of the committee is to save an enormous amount of public expense by dealing with the vast majority of low-level cases below the level of criminality in an expedient and efficient and publicly accountable way.

Q97 Thomas Docherty: I think, Mr Jenkin, you have already covered the issue about the qualities, but I am intrigued that, as you have gone through your evidence, you have almost changed it from seeing them as a judge, to a jury and then lastly as an advisor, and you said that we need to have their responsibilities defined. So do you think that if we assume it is-

Bernard Jenkin: Sorry, can I just correct you? I don’t see I have been inconsistent. I think what I am saying is-

Thomas Docherty: Developed rather?

Bernard Jenkin: No, the point is that even if one of the lay advisors was a retired judge, he wouldn’t be making a judgement, he would be advising the committee on how to make a judgement rational and consistent in its own terms, and there is a subtle difference. I am not asking him to act as judge, I am only asking him to give advice to the committee on how the committee should act as judge, because that is what the committee does.

Q98 Thomas Docherty: So therefore you wouldn’t see a retired judge making the process too legalistic?

Bernard Jenkin: Well, maybe the advantage of not having a judge as commissioner, but having a judge to advise the committee on technical and quasi-legal interpretations of rules and evidence is that you would avoid precisely becoming legalistic. But in any adjudication there is always the potential of becoming legalistic, and indeed, there have been many cases where colleagues have insisted on bringing legal representation, even though there are no judges or legal people involved in adjudicating over them, and that is just the nature of-it is the right of people to make sure that they are properly represented.

Q99 Thomas Docherty: If the House ultimately decided that it wanted the lay members to act as, for want of a better analogy, jurists rather than simply as advisors on the cases, would you accept that-heaven forbid, you have appeared before a jury-that jury would be drawn up of 12, or in Scotland 15, random members of the public, while there is a judge there to steer proceedings, so are we not introducing an artificial or arbitrary measure by saying that it would be helpful to be someone of a legal background, whereas in the normal court of law you do not have a jurist who has legal training?

Bernard Jenkin: Well, the jurists are the members of the committee. The members of the Committee on Standards and Privileges, they are the jurists, because they have to make the juridical decision. What the judge does is directs the jury in a legal case. To a certain extent, the commissioner directs the committee of what he understands to be the facts of the case, but if there were a retired judge who was a lay member or a lay advisor, he would also give a second opinion on the material that was placed in front of him. I think that could only strengthen the understanding of the committee of what they were being asked to decide about and the quality of evidence that they were being asked to assess.

Q100 Thomas Docherty: I was very intrigued by your suggestions about the other options that might be out there in terms of someone with a human resources background or financial background, and obviously you heard the earlier questioning to Sir Christopher. How would you advise, with your experiences on the Public Accounts Committee, that we should appoint these lay members to avoid the usual suspects, I think it was the repertory company. What would your advice be?

Bernard Jenkin: Well, correction, I am on the Public Administration Select Committee. I think it is very important that Parliament itself should be in control of the appointment process. The disadvantage of the Nolan Committee and its successors is that it is a creature of the Executive, and it arose because John Major was trying to divert the political heat of problems in Parliament away from the responsibility of the Government. It is a perfectly legitimate thing to do in its own terms, but it is a good question, isn’t it? Maybe the Committee on Standards in Public Life should be appointed by Parliament and not by the Prime Minister, because the Prime Minister is a politician too, so why is he any better than other politician? I am not speaking personally, of course.

We have just been through a process in Parliament to appoint the successor to the parliamentary ombudsman and we have taken that process off the Executive. Previously it has always been conducted by the Cabinet Office. We have chosen a candidate who we think will reflect Parliament’s wishes rather than being imposed by the Executive. I think that is quite simple, that Parliament should take control of the process. Incidentally, as select committees are looking more and more at how public appointments are made, there are certain categories of appointment that clearly should be parliamentary appointments, and not made by Government.

Q101 Jacob Rees-Mogg: I just want to ask one thing, and that is on a judge being on the committee, and whether it would be appropriate in terms of the separation of powers to have a judge overseeing the House of Commons’ activity, and it leads on to a further-

Bernard Jenkin: I would suggest a retired judge, not somebody serving on the judiciary. I don’t think that would be appropriate.

Jacob Rees-Mogg: I wonder if the same problem arises, that a retired judge is nonetheless a judge, and certainly it has been said that he cannot be a retired Member of Parliament-that is already in the suggestions-and I would have thought if you want a member of the public, it shouldn’t be a peer, an MP or a judge, past or present, because otherwise you are bringing judges into overseeing the House of Commons, which I certainly wouldn’t like from a constitutional point of view.

Bernard Jenkin: Except they would only be there in an advisory capacity, almost in the same way as a select committee takes evidence from a witness.

Q102 Jacob Rees-Mogg: Do you think they would be as little as that in terms of the current-

Bernard Jenkin: No. Well, obviously somebody of, say, ex-High Court judge status would be a very considerable figure, but I think the right person would want to exercise that function with due reverence, particularly if Parliament had made the appointment and been able to choose the right sort of person.

Q103 Jacob Rees-Mogg: It leads on to a further thought. You discussed the various type of people who could be on this committee, and I think you could find a Member of the House who had fulfilled every one of those roles in their previous professional lives; certainly there is plenty of legal experience within the House. There must be people who have been involved in HR and there are certainly people with City backgrounds. It does seem a bit rum to get them from outside to do exactly what we have the resources to do ourselves, the only objection to our doing it ourselves being that nobody has any confidence in our doing it, because they think we are all chums and look after each other.

Bernard Jenkin: I think it would be rum if the committee could guarantee to have that same degree of experience on the committee, but I wouldn’t see this as duplication, because from your experience in investment management, fund management and running a regulated business and all the fiduciary responsibility of doing that sort of thing, you are now very busy with many other things. For you to be able to turn to someone who speaks your same language, who could give you a second opinion on what your understanding of the issues are I would have thought would strengthen your confidence in your position, or maybe alter it. But that is not usurping your position or duplicating your position. I emphasise that I do think these lay members should be advisory and not making decisions, and not least because of the privilege points raised by the Clerk in his note.

Q104 Mr Nuttall: Following on from that point, could a fairly similar outcome therefore achieved by always ensuring that the clerk to the committee was legally qualified, so that he or she could give advice to the committee about the legal process involved in ensuring that the rules were correctly followed, regardless of whether the members of the committee were legally qualified or not?

Bernard Jenkin: I think you need more manpower than that, and possibly, to satisfy what the House has already accepted in principle I understand, more independence than that. The clerks are very much servants of the House and the advantage of lay advisors is that they will be less overtly brought up and educated as servants of the House. But in my short experience of as select committee chairman, I have drawn upon Speaker’s Counsel, for example, for independent legal advice, and it has been extremely useful. But having known one or two colleagues who have been in front of the Committee on Standards and Privileges, in one case on an extremely unjustified charge, I emphasise that a lot of effort and legal advice was about trying to understand and explain why the procedures of the committee were unfair, inherently unfair, and having some external advice on how to make what is fundamentally a tribunal legally fair on those who are being arraigned is not something you could ask a single clerk to do on their own.

Q105 Chair: Bernard, thank you for coming.

Bernard Jenkin: May I just add one other point, very briefly?

Chair: I was about to invite you to do so.

Bernard Jenkin: Thank you so much. When the Committee on Standards and Privileges was first renamed as such in order to emphasise its role as supervising the conduct of Members of Parliament as well as protecting the privileges of Parliament, I don’t think it was the least envisaged that it would become such an arduous posting. Consequently, the Committee on Standards and Privileges is a very busy committee-or has been at times extremely busy-and this has militated against some of the more senior Members of the House of Commons sitting on the Committee on Standards and Privileges, such that when we came to the Damian Green case, it was not felt appropriate to allow the Committee on Standards and Privileges to adjudicate on the privileges aspect of that case, because there were not enough senior Members on it, and the Campbell Committee was set up in place of it.

I think this rather makes the case for separating the two functions; that the Privileges Committee should be a separate committee and the Standards Committee should operate separately. That would also avoid any possibility of an implication that somehow lay advisors or lay members were going to be advising the House on matters of privilege, which really are absolutely to be preserved as a matter for the House alone and not for outsiders to decide upon. I think the appointment of lay members militates even more strongly in favour of separating the two functions and having a separate Privileges Committee.

Chair: Thank you for raising that. Although we didn’t question you about it today, that is something we are looking at. I thank you again on behalf of the Committee for coming.

Bernard Jenkin: Thank you. It is a great privilege to appear before you. Thank you very much indeed.

Chair: If after today there is anything else you think of that you wish to add to your testimony, as it were, please do drop me a line.

Bernard Jenkin: Thank you very much indeed.

Prepared 6th July 2011