APPENDIX 12
Memorandum from the Study of Parliament Group,
Working
Group on Parliamentary Standards and Conduct
1. The Study of Parliament Group (SPG), which was founded
in 1964, consists of Officers of the two Houses of Parliament
and academics interested in parliamentary studies. At its Annual
Meeting in January 1996 the SPG set up a working group to monitor
developments in relation to parliamentary ethics and particularly
the Nolan Committee. This Memorandum of Evidence is submitted
by some of the academic members of that working group in response
to the Clerk's letter of 16 December 1997. It represents their
first thoughts on the important issues there raised. However,
before addressing the specific questions posed in that letter
we consider first the key features which should be taken into
account when assessing the design and operation of a code of parliamentary
conduct; and second, the principal elements of a disciplinary
process.
A: THE DESIGN
OF A
PARLIAMENTARY CODE
OF CONDUCT
2. The overriding design objective for a Parliamentary Code
of Conduct must be to ensure that its operation is seen to be
both fair and effective. Only if that is so will the system command
the confidence of Parliamentarians and of the public. "Seen
to be" is crucial. It implies two qualities - transparency
and clarity - which are essential to securing and maintaining
confidence: the system needs to be open and its operation and
implications easily understood by those affected by it. Its credibility
also depends on its being based as far as practicable on inter-party
consensus.
3. It is also essential that the system should be seen to
be fair to all who are involved. This is largely a matter of ensuring
that the process accords with the rules of natural justice so
that is seen to be fair to those making allegations of a breach,
to those alleged to have breached the code, and to those whose
reputations may be significantly affected by such allegations
or an investigation into them (e.g., witnesses). But there is
also another dimension to the requirement of fairness: the system
needs to be seen to be fair to all those are covered by the code
as well to those alleged to have breached it. This is necessary
to protect the reputation of the institution of parliament itself.
Thus an ineffective code will damage parliament's reputation;
a fair and effective code will protect it insofar as it demonstrates
that those whose conduct is unacceptable have been identified
and dealt with appropriately, leaving unsullied the reputation
of those whose conduct adheres to the agreed standards.
4. Those features - transparency, clarity, fairness and effectiveness
- are required of any system for regulating the conduct and ethics
of a profession. In the context of a code of parliamentary
conduct there are two other important features which also have
to be taken into account: the constitutional status of parliament
and its partisan character as the nation's political cockpit.
In the British system of constitutional government parliament
is sovereign and its special privileges are safeguarded from interference
from either the Crown or the courts by Article 9 of the Bill of
Rights. In consequence the tradition has been to argue that only
parliament itself can regulate the conduct of its Members. The
force of this tradition was recognised by the Nolan Committee
and the principle of self-regulation underpins the present arrangements,
even though in the last 20 years more voices have been raised
against the view that the sovereignty of parliament necessarily
requires total self-regulation.
5. Self-regulation is often identified as one of the key
elements in the definition of a profession. What differentiates
parliament from most professions is party politics and the pursuit
of political power: the partisan character of the House of Commons,
and in the most circumstances the ability of a majority party
to get its way if it wishes, call into question the automatic
assumption that in matters of conduct and discipline partisan
interest will be set aside, always and by everyone, in the interests
of the reputation of the House as a whole. On the contrary, given
the political character of the House it is inevitable that at
least some cases in which misconduct is alleged will have a partisan
element, or that attempts will be made to make partisan capital
out of them. This is an inescapable consequence of the electoral
politics and cannot be ignored when considering the design and
operation of any system of self-regulation. To imagine that partisan
political considerations will never be present when issues of
personal conduct arise is simply naive.
6. To guard against the intrusion of such partisan considerations
we consider that it is necessary to include in any arrangements
the House may make a requirement that the Committee or group of
Members operating the disciplinary aspects of the code of conduct
(which we shall refer to as "the tribunal" for ease
of reference) should be under an explicit duty to act judicially.
Only with such a safeguard can a system of self-regulation within
a political assembly be seen to meet the fundamental requirements
of fairness. Without it, in our view, self-regulation cannot work.
B: THE DISCIPLINARY
PROCESS
7. A code of conduct which is to be seen to be effective
has to be enforced. The mechanism of enforcement is a disciplinary
process the outcome of which may be the imposition of sanctions
upon those judged to have breached the code. Disciplinary processes
are a common features of professions and large organisations.
Where the rule of law applies it is accepted that they should
comply with the requirements of natural justice for fair procedure.
A note by Professor Dawn Oliver on the Legal Requirements of
Disciplinary Procedures is attached as an Annex to this memorandum.
8. An effective disciplinary process in the parliamentary
context will contain five stages:
- the screening and investigation of complaints
received of breach of the code to determine whether or not a prima
facie breach has occurred [stage 1];
- (further) investigation, assembling and presentation
of evidence to a tribunal [stage 2];
- testing the evidence before the tribunal so as to
enable a determination to be made whether or not a breach of the
code has occurred in stated particulars [stage 3];
- where it is found that a breach of the code has
occurred, a determination of the appropriate penalty to be awarded
and the imposition of that penalty [stage 4];
- provision for appeal against a finding, determination
or award [stage 5].
9. The need, in the interests of fairness and effectiveness,
to separate these stages from each other has clear implications
for the role of the Standards Commissioner, the Standards and
Privileges Committee and the House itself. It is clearly desirable
that these roles should be seen to be separated. And given that
complaints may come from any quarter, within or outside the House,
with or without partisan political connections, it is necessary
that there should be some independent process for determining
prima facie whether there is a case to be answered. It
is also likely that that process will on occasion require significant
investigative effort as well as detailed knowledge of the workings
of the House, the code of conduct [including the associated guidance]
and developing "case law". If the conclusion of this
first stage is that there is prima facie a case to answer,
there is a strong argument on resource grounds alone, for some
of stage two - the further investigation and assembling of evidence
- to be a continuation of the initial investigation. It is a matter
of judgment whether the same argument applies to the presenting
of the evidence to the "tribunal" which is charged with
deciding whether the case is made.
10. It is also manifestly in the interests of fairness and
effectiveness that the evidence assembled and presented, and any
other demonstrably relevant material, should be properly and openly
tested - e.g., by calling and cross-examining witnesses - before
the tribunal (stage three) so that when it comes to make its findings
it can do so on a basis which is seen to be secure. In our view
the Commissioner should have the primary responsibility for calling
and cross examining witnesses. It follows that the Member alleged
to have breached the code should also have the opportunity to
call witnesses as well as to question those called by the Commissioner.
We accept that this introduces an adversarial element into the
process but we consider that this is unavoidable if the requirements
of fairness and transparency are to be met.
11. It would, however, be worth considering whether a Member
alleged to have breached the code should be given the option of
not contesting the case presented by the Commissioner - i.e.,
doing the equivalent of "pleading guilty by letter"
- in which case the tribunal would proceed straight to a decision
on the appropriate penalty. It should, however, be open to the
tribunal to insist upon a full, public hearing if it considers
the interests and reputation of the House require it.
12. It is in our view essential, if justice is to be clearly
seen to be done, that the tasks of hearing the evidence, determining
whether or not a breach of the code has occurred (stage 3) and
awarding an appropriate penalty (stage 4) should be carried out
by the same person or persons - the tribunal - who should be required
to be present throughout the whole of these parts of the procedure.
This is one reason why it would not be practicable for the whole
House to exercise this role.
13. It is a fundamental requirement of justice that in such
a disciplinary process the alleged transgressor should have a
right of appeal (stage five) and that such an appeal should be
heard by a tribunal which is independent of, in the sense of differently
constituted, from the original tribunal. It is a matter of judgment
whether the appeal should be limited to issues of due process,
or should cover verdict as well as penalty or extend to a fresh
assessment of all the evidence. In our view the grounds of appeal
should be limited to four: procedural irregularity; manifest unreasonableness
of the findings; significant new evidence and disproportionality
of the penalty. [We elaborate on these below, paragraph 16]
14. In our view these considerations taken together also
indicate that stages one and two should be entrusted to an independent
Standards Commissioner; that either the Commissioner or some other
officer of Parliament or adviser to the Standards Committee should
be charged with the duty of presenting the evidence to the tribunal
and questioning witnesses; that the tribunal should consist of
a small (probably five) panel of Members ["the panel"]
drawn from the Standards Committee and should confine itself to
determining whether the allegation has been substantiated and
if so what penalty should be imposed; and that provision for appeal
should be to an appeal panel ["the appeal panel"] comprising
a wholly different set of Members drawn from the Committee. We
acknowledge that two panels drawn from the same Committee is not
ideal but we see no alternative which is both acceptable and practicable.
15. If it is considered that serious penalties (e.g., suspension
or expulsion) should only be imposed by the House as a whole,
then we would recommend that the decision of the panel (or the
appeal panel where there had been an appeal) should be deemed
to have been approved by the House unless negatived by a vote
within a specified period (say ten sitting days).
C: ANSWERS TO
THE COMMITTEE'S
QUESTIONS
16. In the light of the above considerations, we answer the
Committee's particular questions as follows:
16.1 Grounds of Appeal
As stated above in paragraph 13, we recommend that the grounds
of appeal should be limited to four; procedural irregularity;
manifest unreasonableness of the findings; significant new evidence
and disproportionality of the penalty. The panel would need to
hold a preliminary hearing to determine whether an appeal should
be admitted, wholly or in part, and to exclude any which were
frivolous. We recommend allowing the complainant as well as the
Member complained against to submit an appeal. We do not believe
the choice of grounds would be significantly affected by the inclusion
of assessors.
16.2 Conduct of Appeal
We recommend that appeals should normally be confined to
written representations, but that the appeal panel should have
discretion to hear oral argument. If exceptionally the appeal
panel determined to hold an oral hearing, then it should have
discretion to permit the use of counsel and assist with costs,
though we would expect this to be unusual.
16.3 Corruption Cases
The transfer of such cases to the criminal courts, which
we support in principle, would undoubtedly significantly lessen
the need for complex hearings - both at original and appeal stages.
This is a powerful reason for making such a transfer.
16.4 Hearing of Appeals
16.4.1 As indicated above (paragraph 13), we consider that
it is essential in the interests of justice being seen to be done
that appeals should be heard by a different body from the one
which heard the original case. This requires, therefore, that
the first hearing should be before either a panel as we suggest
in paragraph 11 or a sub-committee of the main Committee and that
appeal should lie either to the appeal panel or, if the sub-committee
format is preferred, to the main Committee minus the sub-committee
members. As stated above [paragraph 12] we do not believe it would
be either practicable or satisfactory from the point of view of
fairness for appeals to lie to the whole House, although we have
suggested in paragraph 15 a mechanism for giving the House a role
in confirming the most serious penalties should this be considered
necessary.
16.4.2 Also as indicated above, we do not believe that an
appeal panel, or the Committee, should conduct a full re-hearing
of the case. In the exceptional instances where a re-hearing is
required, the process should in our view be as outlined in paragraph
14 above, thus preserving the distinction of role between the
Commissioner and the Committee.
16.4.3 Except where criminal allegations are involved, as
with corruption, we accept the arguments for the exclusion of
external bodies. We see no material advantage in an external judicial
body reporting to the Committee on Standards and Privileges: if
the Committee has to make a decision, the advantage - presumably
the appearance of independence and possibly expertise - of externality
is lost; if the Committee effectively has no real decision to
make, its place in the process is redundant.
16.4.4 We see no particular advantage in a hybrid body; it
would be unlikely to assist in achieving clarity. There may be
circumstances in which the Commissioner could usefully be assisted
by assessors. In the case of the panel or appeal panel, or the
sub-committee or the Committee, it would be preferable if any
extra-parliamentary expertise considered necessary were provided
as evidence on the record so that it could be properly tested.
16.5 Outcome of Appeals
In the interests of transparency and natural justice it is
essential that to be clear what decisions are open to an appeals
body. In our view the appeal panel [or the Committee if that route
is preferred] should be empowered to:
(a) confirm the findings of the original tribunal and
any penalties imposed;
(b) quash the original tribunal's findings and any penalties
imposed;
(c) order a re-hearing of the case by either a new or
the original panel/sub-committee if it is satisfied that:
(i) material new evidence has come to light;
(ii) there were significant procedural irregularities
in the original tribunal's hearings;
(iii) the original tribunal's findings were manifestly
unreasonable (i.e., no reasonable person could fairly have reached
such conclusions on the evidence presented);
(d) vary (i.e., increase or decrease) the penalty imposed
by the original tribunal, or substitute another.
17. Review
The appointment of the Standards Commissioner, the introduction
of a formal Code of Conduct and the establishment of a Committee
on Standards and Privileges together amount to a very substantial
change to the culture and practice of the House. Cultural changes
take time to take root, especially when other significant changes
(the Modernisation Committee, changes in the composition of the
House, constitutional reform) are occurring as well. It would
in our view be prudent if the Committee were to decide to commission
a review of the design and operation of the Code of Conduct and
the mechanisms associated with it towards the end of the life
of this Parliament for consideration by its successor in the first
year of the new.
Gavin Drewry, Philip Giddings, Michael Lee, Dawn Oliver
[on behalf of some of the academic members of the Working
Group on Parliamentary Standards and Conduct of the Study of Parliament
Group]
29 January 1998
ANNEX
Legal Requirements of Disciplinary Procedures
1. This paper about Disciplinary Procedures draws on cases
in Judicial Review and cases concerning disciplinary procedures
in contractual relationships such as Trade Union membership and
professional body membership. In the time available it has not
been possible to focus on the particular problems that are raised
by parliamentary privilege and parliamentary procedures for dealing
with complaints against MPs. But many the points are of obvious
relevance.
2. In principle disciplinary procedures should be fair to
the person who is liable to be disciplined. The strictness of
the requirements of a fair procedure depends upon the seriousness
of the impact of a disciplinary penalty on the disciplinee. A
strict procedure will be applied where the complaint is of discreditable
behaviour and/or the penalty will be depriving the disciplinee
of his/her livelihood.
3. The strictness of the procedure will also depend upon
countervailing public interest considerations. For example, if
there is a public interest in not disclosing the source of complaints
about a disciplinee for fear that witnesses/complainants might
be victimised or threatened, or for fear that identifying complainants
or witnesses might deter future complaints where it is very much
in the public interest that complainants should feel able to come
forward, then there will not be such strict requirements of disclosure
of information to the disciplinee as in cases where such considerations
do not apply. (Examples of where disciplinary decision-making
bodies would not be required to disclose the identity of complainants
and witnesses, or the content of their evidence include regulation
of gambling, and complaint by victims or witnesses of child abuse).
Also considerations of speed and expense and the need to protect
the interests of third parties may mean that less strict procedures
would be followed.
4. The strictness of the procedure will also depend upon
the level at which the disciplinary procedure is being taken.
For example, there may be fairly lax standards of procedure at
an initial disciplinary hearing if it is known that an appeal
to an independent person is available. Similarly an initial fact-finding
investigation to determine whether there is a prima facie
case need not conform to strict procedural requirements. Thus
requirements of expedition and administrative convenience may
justify a fairly summary disciplinary procedure as long as a more
thorough investigation and disciplinary procedure is available
by way of appeal.
5. The normal requirements, unless the considerations above
indicate that a less strict requirement is appropriate, in disciplinary
procedures would be as follows:
(i) The disciplinee should have known in advance what
standards of conduct etcetera were required of him/her and that
breach of those standards of conduct might lead to disciplinary
procedure.
(ii) The disciplinee must be informed of the general
nature or "gist" of the complaint against him or her.
In addition, where there is no appeal and no public interest argument
against disclosing evidence or information, the disciplinee ought
to be informed of the evidence against him or her and should be
given an opportunity to put their own point of view and challenge
evidence and allegations.
(iii) There is no general requirement that disciplinees
should have legal representation, but where the outcome of the
disciplinary procedure would have a serious impact on the disciplinee
the argument for allowing legal representation is the stronger.
But where there is a two stage procedure with a summary first
decision followed by a possible appeal, there would not necessarily
be a requirement of representation at the summary stage. If the
summary stage is conducted confidentially then the case for legal
representation is even weaker.
(iv) The extent to which a disciplinee on a full initial
hearing, or at an appeal, is entitled to cross-examine witnesses
and call their own witnesses will depend upon the strength of
the public interest considerations noted above, and the potential
impact of a finding of "guilt" on the disciplinee.
(v) If there is a two stage process, with a summary decision
followed by a possible appeal, then it need not be objectionable
if a person with an interest in the matter, for instance, the
"victim" of the behaviour complained of, deals with
the matter. However, it is essential that in each disciplinary
procedure where the impact on the disciplinee is serious in the
ways outlined above the complainant or victim of the conduct by
the disciplinee must not be "judge in his/her own cause",
and an impartial person or group should decide.
(vi) Those making decisions on disciplinary matters should
apply the criteria which determine the standards of conduct required
and should act without bias and generally in a judicial manner.
They should not take account of irrelevant considerations. In
particular they should not be influenced by the consideration
of the political or other persuasion of the person being disciplined,
or the interests of the parties to which they belong.
(vii) It would be inappropriate for persons other than
the person/s charged with decision making in the disciplinary
procedure to seek to influence the decision makers except openly,
with the full knowledge of the complainant.
(viii) There is no general duty in administrative law
for decision makers to give reasons for their decisions, but the
trend is very strongly towards a requirement that reasons be given
when the decision in question will have a serious impact upon
the disciplinee. This will apply both at a summary and an appeal
stage if there is a two stage disciplinary procedure. The purposes
of giving reasons are (1) to legitimate the decision in the eyes
of the disciplinee and complainants and the general public if
the matter is public; (2) to give the disciplinee (and even in
some circumstances the complainant) an opportunity to challenge
the decision in another forum where possible. (3) To elaborate
the criteria that will be applied in disciplinary procedures so
that future possible diciplinees will know by what standards they
might be judged and may be deterred from behaving contrary to
the standards required. (4) The knowledge on the part of the decision
makers that he/she/they will have to give reasons will act as
an incentive to careful decision making and consideration of the
evidence etcetera, and make sure that a fair procedure is followed.
(5) The giving of reasons may protect the decision maker from
unjustified challenges because those adversely affected are more
likely to accept a decision if they know why it has been taken.
(ix) The reasons must be sufficient to show that the
decision maker has taken into account relevant matters and not
taken into account irrelevant matters. In particular the decision
makers should state the material findings of fact upon which their
eventual decision is based. If the facts were disputed at the
hearing then reasons for preferring one version of facts rather
than another should be given.
(x) There is authority for the proposition that a failure
to give reasons or give adequate reasons might entitle another
body to assume that there were no or insufficient good reasons
for the decision. This could give rise to a strong case for quashing
the decision and for a rehearing of the matter to take place before
different individual decision makers.
Dawn Oliver, Professor of Constitutional Law, University College
London, Member of the Study of Parliament Group.
27 January 1998
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