APPENDIX 1
Letter to Lord Neill of Bladen QC, Committee
on Standards in Public Life, from the
Chairman of the Committee on Standards and Privileges
I write on behalf of the Committee on Standards and
Privileges to respond to chapter 3 of your Committee's Sixth Report,
Reinforcing Standards.
I would first like to apologise for the time that
has passed since the publication of your report without any reply
from my Committee. The pressure of business has unfortunately
made it impossible to send a considered reply until now, although
we have discussed your report on a number of occasions. We have
borne its recommendations in mind in our recent consideration
of complaints.
The work of your Committee is much appreciated and
we welcome the constructive approach taken in your reports. We
can happily accept several of your proposals, relating to Members
of Parliament and the criminal law, complaints to the Parliamentary
Commissioner of Standards alleging criminal conduct, and the application
of the advocacy rule to overseas visits. We would also be happy
to endorse a proposal that the Chairman of our Committee be chosen
entirely on merit, without any reference to party political affiliation.
We have concerns about a number of your other proposals.
We believe that a first instance tribunal and appeals procedure
in the House of Commons such as you propose would be unworkable.
Members of Parliament are not like other professionals. We are
elected for a limited period. Your Committee's proposals would
in our opinion unduly delay and complicate the consideration of
complaints, to the detriment of both the public and Members. We
are not convinced that your proposals would be significantly fairer
in practice than our own. We prefer our own report on Appeal Procedures.
We appreciate that you have been concerned to ensure
that the House's disciplinary process fulfils the "minimum
requirements of fairness" as set out by the Joint Committee
on Parliamentary Privilege, as well as the requirements of the
European Convention on Human Rights.
For the sake of clarity, I will set out below each
of your Committee's recommendations, followed by our comments.
R1. The Government should introduce
its proposed legislation on the criminal law of bribery as soon
as possible in order to remove any uncertainty regarding the scope
of the statutory offence of bribery and to make clear that members
of both Houses of Parliament, acting in their capacity as members,
and those who bribe a member of either House of Parliament fall
within its scope.
We agree entirely.
R2. Where a complaint is made to
the Parliamentary Commissioner for Standards alleging criminal
conduct of an MP and the complaint is neither malicious nor frivolous,
then the Parliamentary Commissioner should report to the Committee
on Standards and Privileges with a recommendation that the matter
be referred to the police for further investigation.
We hope that such cases will be extremely rare. If
one were to arise, we believe the Parliamentary Commissioner should
report to the Committee that the matter had been referred to the
police for further investigation. We should do the same if the
Commissioner had not.
R3. 'Trial' procedure in serious,
contested cases
1. Where
(a) the Parliamentary Commissioner finds
a prima facie case against an accused MP, the alleged facts of
which, if true, would amount to serious misconduct, but
(b) the alleged facts are disputed by the
accused MP,
the Parliamentary Commissioner should report to
the Committee on Standards and Privileges with a recommendation
that the case be referred to a disciplinary tribunal consisting
of a legal chairman sitting with either two or four MPs who should
be of substantial seniority.
2. Before making a decision about whether
to accept the Parliamentary Commissioner's recommendation, the
Committee on Standards and Privileges should allow the accused
MP an opportunity to make representations in respect of that decision.
3. If the Parliamentary Commissioner's recommendation
is accepted, the accused MP should be provided with financial
assistance to enable him or her to fund legal representation at
the hearings of the tribunal.
4. The tribunal should be governed by procedures
which satisfy the "minimum standards of fairness", as
defined by the Nicholls Committee.
5. The tribunal should both act as fact-finder
and decide whether, on the basis of the facts found, the charges
against the accused MP are proved.
6. The tribunal should report its conclusions
to the Committee on Standards and Privileges and, assuming no
appeal is being lodged, the Committee should consider what penalty
(if any) should be recommended to the House of Commons.
We do not accept this recommendation. We reject the
idea of involving Members of Parliament in the process of investigation.
This is not just because the task of carrying out long and complicated
investigations would take up a disproportionate amount of any
Member's time. It would also give grounds for complaint that the
process was unfair and partial. Members have party allegiances,
and are unlikely to be perceived as objective or independent either
by the public or by a Member who has been complained against.
This perception could be a serious handicap, particularly if a
complaint against a Member of a minority party were to be investigated
by Members predominantly or only of other political parties.
We also have serious reservations about the role
of lawyers in internal House of Commons disciplinary matters.
Whilst a lawyer might be well equipped to ensure procedural fairness,
we are not convinced that the lawyer would be better placed than
an independent Parliamentary Commissioner for Standards to assemble
and evaluate the evidence in inquiries. The assistance of a legal
assessor to the Parliamentary Commissioner in complicated cases,
as we have recommended, would be a more appropriate measure to
ensure that procedures are properly followed and that legal advice
is available to the Commissioner as required.
We have been careful to ensure in recent cases that
Members have had access to legal advice and help where they have
requested it. We have noticed, however, that the involvement of
lawyers has in some cases tended to prolong and complicate unnecessarily
matters which could have been resolved swiftly through full co-operation
between the Members concerned and the Parliamentary Commissioner.
Lawyers are used to an adversarial system. Their involvement tends
to encourage a view of the Parliamentary Commissioner as the prosecution,
which we emphasise she is not. As well as verifying the evidence
which a Member puts forward in response to a complaint, she is
available herself to assist Members to gather evidence, and to
rebut complaints against them where these are unfounded. The purpose
of the disciplinary system is to establish the facts, rather than
to make a case against an accused person.
We are always open to requests from Members that
they be accompanied by a legal adviser, but we are not persuaded
that assistance should be available from public funds for legal
representation. The existence of free representation would sometimes
lead to matters being prolonged unnecessarily by either the Member
or the lawyer, and would constitute a potentially unlimited drain
on public funds. Free assistance to obtain factual information
is already available to Members from the Parliamentary Commissioner,
although we appreciate that some Members may have mistakenly been
ambivalent about her role.
R4. Appeal procedure in serious,
contested cases
1. An accused MP who receives an adverse ruling
from the first instance tribunal should have a right of appeal
and should be entitled to financial assistance to pursue that
appeal.
2. The appeal should be heard by an ad hoc
appellate tribunal, possibly a retired senior appellate judge
sitting alone.
3. If the appeal is dismissed, the Committee
should report the result of the appeal to the House of Commons
along with any recommendation as to penalty.
The final decision in any case as to verdict and
penalty is now taken by the House on the recommendation of our
Committee. The effect of your Committee's proposal would be to
take the decision from the hands of the House to those of a retired
judge, breaking the principle of self-regulation entirely.
Our view has been that an appeal tribunal should
consider only matters of fact. Your Committee has commented that
"Facts are not found in the abstract." This is true,
but does not mean that a tribunal cannot confine its conclusions
to matters of fact. We note that the first-instance tribunal which
you propose would be set up only if "the alleged facts are
disputed by the accused MP". We understand this to mean that
the tribunal would consider whether the Member in question had
done what he or she was alleged to have done, but that it would
not consider whether what he or she was alleged to have done amounted
to a breach of the Rules. We envisage an appeal along the same
lines.
R5. 'Trial' and appeal procedure
in other contested cases
1. In cases which, in the opinion of the
Parliamentary Commissioner, do not warrant a referral to the full
tribunal, the Parliamentary Commissioner should make a recommendation
to the Committee on Standards and Privileges accordingly. The
Committee should decide whether to uphold the recommendation of
the Commissioner on the basis of the Commissioner's report and
of the representations (if any) by the accused MP.
2. In those cases that remain with the Parliamentary
Commissioner, the Commissioner should investigate the complaint
and, on the basis of the facts found, decide whether the complaint
should be upheld or dismissed. The Commissioner's decision should
be reported to the Standards and Privileges Committee, which should,
in turn, decide whether or not to adopt the Commissioner's report
and what penalty (if any) should be recommended to the House.
3. In cases where an accused MP disputes the
Commissioner's findings or conclusions, that MP should be able
to appeal against the Commissioner's decision, such an appeal
to be heard either by the Committee itself or by such ad hoc appellate
body as it decides to appoint."
R6. Disciplinary procedure in non-contested
cases
In non-contested cases, whether serious or
minor, the Parliamentary Commissioner should, in accordance with
present practice, report the (undisputed) facts and conclusions
based on those facts to the Committee on Standards and Privileges,
which, if it endorses the report, should recommend to the House
of Commons what penalty (if any) should be imposed.
This is very much as we operate at present. We always
offer a Member an opportunity to make representations to us if
there is any possibility that we might recommend the imposition
of a penalty as a result of a report from the Parliamentary Commissioner.
R7. The disciplinary proceedings of the
House of Commons should be held in public but should not be broadcast.
This recommendation as to hearings in public does not extend to
the private deliberations of the Standards and Privileges Committee
or of any disciplinary or appellate tribunal (which should remain
private).
All our experience points to proceedings of the Committee
being held in private. We have generally published the oral evidence
which we have taken in private together with the relevant report.
Furthermore, the final part of the disciplinary process (where
this is necessary) is carried out in the full glare of publicity
on the floor of the House of Commons. Any Member wishing to raise
a grievance publicly has the opportunity to do so at this stage.
R8. The House of Commons should take
measures in relation to the Committee on Standards and Privileges,
with a view:
(a) to ensuring that a substantial proportion
of its members are senior MPs, and
(b) to exempting the Committee from the convention
that its chairman should be drawn from the Government benches.
Our Committee, like all committees of the House,
should represent the balance of parties in the House as a whole.
We agree that the Chairman need not be drawn from the Government
benches. We believe the Whips should not include this Committee
in their consideration of which party should hold which select
committee chairmanships. My Committee has asked me to say that
it chose its Chairman without reference to party allegiance.
R9. The ban on paid advocacy should be
retained.
We agree entirely.
R10. The guidelines relating to the ban on
paid advocacy, set out in the Guide to the Rules relating to the
Conduct of Members, should be amended so as to make it possible
for an MP who has a personal interest to initiate proceedings
which relate in a general way (and not exclusively) to that interest,
subject to the following safeguards:
- the MP is prohibited from engaging in 'paid
advocacy' on behalf of that interest;
- he or she is required to register and declare
the interest in accordance with the guidelines;
- he or she must identify his or her interest
on the Order Paper (or Notice Paper) by way of an agreed symbol
when initiating a debate.
We have discussed these recommendations, and have
decided that there is a case for exempting overseas travel from
the rule which bans the initiation of parliamentary proceedings
where there is a paid interest. We will be recommending accordingly
to the House.
We are reluctant to propose any more general change
to the rule. Your recommendation would amount to a considerable
relaxation of the current guidelines, as it would allow the initiation
of any parliamentary proceeding which did not seek to confer benefit
exclusively upon the body or individual with whom the Member
had a registrable connection. The prohibition could therefore
be avoided by framing questions, amendments, &c., in general
terms; for example, a Member remunerated by an oil company would
not apparently be precluded from moving an amendment to the Finance
Bill to benefit all oil companies. In our view to relax
the rules to such an extent would fatally undermine the ban on
paid advocacy which we have agreed we need to retain.
We are glad that our Committees have found some common
ground. The debate is useful and seems more likely to create a
workable and fair disciplinary system for the House than if either
of us were working in a vacuum. Once again, may I express our
gratitude for your Committee's work.
4 July 2000
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