Letter to the Chairman of the Committee
on Standards and Privileges from Lord Neill of Bladen QC, Committee
on Standards in Public Life
Thank you for your letter of 4 July 2000 in which
you set out your committee's response to my committee's recommendations
contained in Chapter 3 of our Sixth Report, Reinforcing Standards.
We welcome your support for the recommendations relating to Members
of Parliament and the criminal law and to the application of the
advocacy rule to overseas visits. On the latter, we are aware
that you have recently published a consultation paper (710 (1999-2000))
covering this issue (amongst others). When we have completed our
present enquiry, my colleagues and I will wish to consider your
consultation paper with care. We shall do our best to make any
comments we may have in time to meet your deadline of 6 November
2000.
The principal issue on which we differ with your
committee concerns our recommendations in relation to the investigatory,
'trial' and appeal procedures in serious, contested cases.
The 'trial' procedure
You reject my committee's recommendation (Recommendation
3 of the Sixth Report) that the 'trial' of a serious, contested
case should be undertaken by a tribunal consisting of a legal
chairman and either two or four MPs (of substantial seniority).
In your letter you state:
"We do not accept this recommendation.
We reject the idea of involving Members of Parliament in the process
of investigation".
Your reasons are, first, that such involvement would
take a disproportionate amount of any Members's time and, secondly,
there would be a risk that the process would be perceived as unfair
and partial because Members are party political. You also indicate
your reservations about introducing lawyers into the Commons'
disciplinary procedures.
I believe that there may be some misunderstanding
about aspects of our Recommendation 3, and I think it would be
helpful if I were to add some further clarification.
Although we refer (in the text of the report) to
the tribunal in Recommendation 3 as an "investigative
tribunal", our meaning was not that the tribunal would
investigate in the sense of assembling the facts of a case. This
task is one properly undertaken by the Parliamentary Commissioner.
The role of the tribunal would be to 'try' the case: that is,
it would act as adjudicator and fact-finder (that is, draw conclusions
about the facts on the basis of the evidence amassed by the Parliamentary
Commissioner and any evidence adduced by the Member complained
about).
It is a fundamental principle of procedural fairness
that the functions of 'investigator' and 'adjudicator' should
be carried out independently of each other. Although we accept
that in contested cases which are not serious and complex it it
reasonable for the Parliamentary Commissioner to perform both
roles (which is the current practice), we believe that such a
convergence of functions would fail to meet (or would be perceived
not to meet) the requirement of fairness in serious, complex cases.
On the more practical issue of whether MPs would
have time to sit on such a tribunal, I would like to make three
points: first, we make clear in the Sixth Report (at paragraph
3.27) that we anticipate that contested allegations of serious
misconduct are likely to be very rare; secondly, again a point
raised in the Sixth Report (at paragraph 3.45), we take the view
that if MPs are unable or unwilling to participate in their own
disciplinary procedures, then Parliamentary self-regulation in
this area would appear to be unworkable; and, thirdly, in suggesting
that the tribunal should include two or four senior MPs (who would
not be members of the Standards and Privileges Committee), we
were taking account of your evidence that members of your Committee
were not in a position to assume the additional workload that
might be involved in membership of such a tribunal. The second
of these points also bears on your argument that MPs would not
be perceived as impartial investigators: if self-regulation in
disciplinary matters is to continue, then MPs must be trusted
to be able to carry out quasi-judicial functions impartially.
And surely this would be much more likely were you to adopt our
recommendation that cases should be 'tried' by a small group of
senior MPs.
Finally, in relation to the 'trial' stage, I would
like to draw your attention to a misunderstanding in the second
paragraph of page 4 of your letter. It states:
"We understand ... 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."
As we said in the Sixth Report (paragraph 3.47),
it is our belief that fact-finding cannot be separated from adjudication
in this way. On this premise, we made the clear recommendation
that "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" (Recommendation 3, paragraph
4).
Appeal procedure
We understand the point you raise the proposed appeal
mechanism. However, our difficulty was that, if we were right
in recommending that the trial should be in the hands of senior
MPs, it seemed odd to recommend that the appeal should be conducted
in front of another group of senior MPs.
I know that these are complex matters and I appreciate
the many demands on the time and energy of Members of your very
important Select Committee. But it is my hope that, in the light
of this letter, you and your colleagues will be persuaded to re-consider
your decision in respect of our recommendations relating to the
disciplinary procedure in the House of Commons.
3 October 2000
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