Examination of Witness (Questions 100
- 114)
TUESDAY 27 FEBRUARY 2001
THE RT
HON KENNETH
CLARKE
100. In what capacity are you there?
(Mr Clarke) The difficulty is—and it has been
argued against me, as it were, and other members like me—that
my career has been based on 30 years as a Member of Parliament
and the reason I am invited, I have no doubt, is because people
know that I was Chancellor of the Exchequer and they know I have
been Minister for a long time. So, it is that which gives me the
base from which I pontificate on these matters to a reasonably
expert audience. I think it is slightly absurd if that is regarded
as still acting as an MP. If I had retired from the House at the
last election, I still think I would have had most of these invitations
because, as a recent Chancellor of the Exchequer and someone who
is still in business, I would have got onto these platforms.
101. Of course, you would not be a Member of
Parliament then.
(Mr Clarke) That is true but everybody, when they
go into this world, bases what they do upon their own personal
experience and to say that because someone has attained celebrity
or even expertise because of spending their past career as a Minister
and an MP amnd therefore every time they make a speech on anything
in public they are acting as an MP strikes me as odd.
102. You say that you have been very comprehensive
in what you have registered, but do you feel it was fair or unfair
to place a requirement on you to make the registrations you did
in relation to fees for speeches you gave?
(Mr Clarke) I have done that because I cannot see
any great objection to it, that I should list who I have spoken
to and list them all where I receive more than £500. I decided
not to make an argument about it. I cannot, for the life of me,
see what bearing that is meant to have on my activity as a Member
of Parliament, but I also could not quite see any reason to get
too burnt up about it. What I was arguing about, along with everybody,
was the idea that I should start filing employment agreements
with people with whom I had accepted speaking engagements which
struck me as a bizarre use of the English language.
103. Can I move you on to another area which
is to do with the pressing problem that exists in terms of perception
of how the Committee operates. You know that there are two reports:
the report of the Committee which is usually a very small report
and then there is the report of the Commissioner. The Commissioner's
report includes material whether the case is upheld or not. Do
you feel that where a case is not upheld, all the material we
currently publish in the Commissioner's report should be made
available publicly?
(Mr Clarke) I have not thought about it a great deal,
but my off the cuff reply would be that the Committee's report
should suffice because there have not been many occasions yet—there
will be occasions, there are bound to be—when the Committee
does not accept the Commissioner's recommendation. When the Committee
takes such a decision, its decision is completely undermined by
people preferring, if that is what they do prefer, the unfavourable
report of the Commissioner. That is the way round it is always
likely to be because I do not think this Committee will often
uphold a complaint against a Member where their Commissioner has
advised them that there is no foundation for it. It will only
work the other way round. All that happens is that the Committee's
decision is totally disregarded and everybody goes to the Commissioner's
report. It also means that everybody dealing with the Commissioner
has to do so walking on eggshells regarding what they disclose
and so on because whether or not it is going to be remotely held
against them by the Committee, an awful lot of hostile people
outside are going to go through the Commissioner's report seeing
if there is anything they can use against the Member of Parliament
who has been disclosing all this.
104. Do you not accept that it is the Commissioner's
report against which people outside might legitimately wish to
test to what extent the Committee has properly done its job and
properly found and made its findings and that it is only by looking
at the Commissioner's report that they will be able to establish
whether we are being political or whether we are being straightforward?
(Mr Clarke) This goes back to whether the House should
not have sorted all this out by controlling itself properly in
the first place.
105. That is another matter.
(Mr Clarke) I personally think in the end that the
Committee is the way in which the House polices itself and it
is for the House itself to ensure that it has a Committee which
does not act on party political grounds and is reasonably capable
of carrying confidence. The implication when you publish a second
report rather reminds me of when people wanted to publish all
the advice to Ministers when Ministers took a decision. Of course
the argument is that this enables you to judge the Minister's
decision better, but what it actually does is say that the silly
old Minister can be set aside because the official must be right
and what the Department of Education or what the Treasury were
advising the Minister to do must have been correct and we need
to know whether the Minister, for nefarious political reasons,
did not take this obvious and sensible advice. The decision is
the Minister's; it is the Minister's decision that should be published;
it is the Minister who should be answerable; if the Minister has
it wrong, it is his neck that should be subjected to appropriate
treatment. I think it is for the Committee to take the decision;
it is for the Committee to issue its report; and it is neck of
the Committee that is answerable if people start suggesting that
this has been biased.
106. I am sure you understand that it would
be impossible for us not to publish Commissioner reports. The
question I am asking you is to what extent you feel that the complete
report of the Commissioner should be published in conditions where
a complaint is made that is not upheld. (Mr Clarke) You
are going to be in even more difficulty if you produce an edited
version of the Commissioner's report. I am not sure why it is
impossible for you not to issue the Commissioner's report. The
Commissioner was not meant to be a public figure, the Commissioner's
authority derives from the Committee.
107. That was the point of the question I was
asking you originally. This whole structure was set up to insert
an element of independence in consideration of complaints whereby
the Committee of Privileges would then not stand accused of being
political in its judgment. You may say that it is not for us to
be political but, even under this new structure, we have been
accused of being political when in fact we have not been. Therefore,
I cannot see how it is possible not to put reports which are deemed
as independent ... I am pushing you towards to what extent you
would be prepared to see them qualified, although you said they
should not be edited, and if the Commissioner herself were to
say, "I do not believe, in the light of that complaint not
being upheld, that all this information should necessarily go
into the public domain." We do not want in any way to interfere
and we do not interfere with her reports, her reports are completely
her reports, she produces them independently, but the problem
we find is that when the Commissioner's material goes into the
public domain, very often because it includes a lot of material
which is very controversial, even in situations where complaints
have not been upheld, then it can be extremely embarrassing for
Members and that is what troubles me about this procedure.
(Mr Clarke) I am probably going towards what you described
as the impossible which is not to publish the Commissioner's report.
The old process was that the House just governed itself and it
has to be said, not just in recent years but you can go back a
long way to find that the House sometimes behaved in a very party
political way in doing that though in modern times, I think less
than say in the 19th century. The Marconi scandal in 1912 was
considered by a committee which voted on purely political lines.
We had one Member expelled and we had a whole lot of Members subject
to a vote on the floor of the house 20 years ago when people were
not voting and acting on party political lines. The House must
answer to itself; it is accused of being political. What the new
system has done is introduce a more structured way of inquiring.
There is a proper investigation; there is considered independent
advice that goes to a Committee when a serious allegation is made.
It is true, if you look back, that it was all rather public school
clubish and Members knew what they knew or did not know what they
did not know and the eventual votes could be a little haphazard.
What you now have is a committee that is charged with considering
the advice of an independent commissioner, which I assume it would
usually follow but sometimes disagree with. I am not sure it is
a good idea that you have the Commissioner's report published
every time even where the complaint has been dismissed because
if the Commissioner's advice is really what everybody outside
is interested in, what is the point of having a committee? Why
not just have an independent ombudsman?
108. Can I put it to you that in the event that
you were not to publish the Commissioner's report, something which
I believe stands at the heart of Nolan reform, is this independent
element producing reports which the public could read which was
not interfered with by Members of Parliament. Members of Parliament
make their own judgments and I keep coming back to the case, if
only, where complaints are upheld, we could find a way of qualifying
material which is currently put into the public doman in its entirety
apart from where we sideline where we believe we are getting into
personal issues. You seem to be arguing to go all the way but
I feel that will completely undermine the Nolan reform.
(Mr Clarke) I suppose we could have what you are suggesting
is a situation where the Commissioner agrees that parts of his
or her report are not really relevant to the complaint being dismissed
and there is no public interest in seeing all this detail. I would
not think that many of those would arise.
109. You could draw a distinction between her
conclusions on the evidence perhaps in cases where a complaint
was not upheld. You will know that the body of her report is essentially
evidence.
(Mr Clarke) Yes. I had not thought about it enough
and one would need to look at some practical examples. The one
that occurs to me, and it does bear on one of the more eccentric
events that happened in this Committee in this Parliament, is
where part of the evidence against a Member who was criticised
severely at the end bore on whether or not her marriage was in
a decent state at the time of particular events and whether she
was or was not separated or living apart from her husband. It
is arguable that all that could have been left out but I did not
follow the details of that. My own impression of the detail was
that there was an awful lot of rather bizarre features of both
the complaints and the investigation in that case and I have no
views about the merits of the outcome of that which was a bit
of a one-off, I think.
110. In that case, the Commissioner did go out
of her way to exclude material which she thought was extremely
embarrassing.
(Mr Clarke) That is probably sensible.
111. The problem in that particular case was
that this particular arrangement that had been entered into was
very relevant to the inquiries that were taking place.
(Mr Clarke) I can remember that. I am sorry, I should
not have remembered one stray thing but there could be other circumstances
where the explanation for what appeared to be financial impropriety
was some extremely personal matter on which the Member was entitled
to privacy, some peculiar family problem that occurred. One could
normally rely on the Commissioner to try to leave that out but,
if it is evidence, the Committee could actually suggest that it
is all left out. I quite agree that the example I gave is not
a good example of the point.
112. I have one final question. As I have said
to you in my questioning, we are ever seeking to protect the independence
of the Commissioner yet, at the same time, balance that against
the need, in the publication of her reports, not to prejudice
people's human rights which is one of the issues that has been
raised. Do you see the role perhaps of the Chairman of the Committee
being greater in terms of deciding upon which inquiry to proceed,
particularly if the Chairman carries the confidence of the House,
because the Commissioner at the moment is bound by the rules of
Parliament. If you were to question her, why are you proceeding
with this case? She would say, "There is a rule and I am
satisfied, on the basis of the evidence I have seen and my preliminary
inquiries, that there is a prima facie case which would allow
me to further proceed", and it is at that particular point
where it could be argued that the Chairman might express a view.
Do you see anything in that?
(Mr Clarke) I do. I would expect, given the way that
Parliament works, that the Chairman would play quite a role in
that. Firstly, the Commissioner might well consult the Chairman
and see what his view is—whether it should be nipped in
the bud and treated as a minimal matter and not one that justifies
a full inquiry—and a sensible Chairman would then consult
the members of the Committee and form his own view and go round
the members to make sure that there was no member of the Committee
who was all burnt up with a different opinion who thought it ought
to be investigated. The role of the Chairman, apart from presiding
over the proceedings, would lend itself to that, I would have
thought. He would be the first person to whom the Commissioner
would turn for some initial steer as to what he thought were the
merits or otherwise of investigating this—but then the Chairman
would almost certainly consult the members of his Committee.
113. Could I put to you that that would be a
problem? I am only identifying the Chairman but the point is that
we are trying to avoid a system whereby members themselves are
seen to be involved in deciding upon where one should proceed
because of the problem of politics. If you confine it to the Chairman
in his relationship with the Commissioner, then, in the view of
certainly myself—or some of us perhaps, it is possible that
you would restrain the possibility of journalists misunderstanding
or misrepresenting what was happening?
(Mr Clarke) I am probably less sensitive than you
are about the need to keep the politics out. Most of this is political
and I think at least half these allegations that have been investigated
have been brought for political reasons. The newspaper or the
member of Parliament bringing the allegation is acting in an extremely
partisan fashion so for the Committee to go the other way and
say "We cannot allow any political judgment to enter into
any of this" is going too far. The Committee is selective
because, amongst 650 or whatever political figures, this Committee
is regarded as reasonably capable of rising above the political
fray—regarded as independent people likely to be able, in
discussion with each other, to reach fairly non-partisan views.
That will include occasionally judging that other people are being
too partisan and too political and dismissing complaints brought
by some fervent supporter of one's own political party and saying,
"This is really not sensibly what should be happening and
this is only going to damage Parliament and politics as a whole".
Chairman
114. Thank you very much for your evidence today
which I found very interesting.
(Mr Clarke) Thank you for having me along.
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