Select Committee on Standards and Privileges Thirteenth Report


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.


  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.


  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).


  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


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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