Mr
Foster's Notification of a Change of Constituency Office Address
5. There is no dispute as to the facts. Mr Foster
maintained a database of constituents who had asked to be kept
informed of his parliamentary activities. He used pre-paid envelopes
and stationery provided at House expense[3]
to send them notification of a change in his constituency office
address. The method he chose was to send each of them a letter
with a copy of a calendar which included the new contact details.
The inclusion of the calendar was described by Mr Foster as "a
by-product for these particular correspondents": according
to him, the vast majority of the calendars were delivered by volunteers,
by hand and unaddressed.[4]
6. Mr Foster maintains that ensuring that interested
constituents have up to date contact details for their Member
of Parliament is part of the vital link between Members and constituents.[5]
We do not disagree with these sentiments, and note that nobody
has sought to argue that advising constituents of a change of
office address is not a proper Parliamentary activity on a Member's
part. The principle of whether the cost of sending these letters
could be publicly funded is therefore not in dispute; the issue
is whether they could properly be sent using stationery and envelopes
provided at the expense of the House itself, or whether the cost
should have been borne by Mr Foster's IEP.
7. On 9 May, Mr Foster, although still convinced
that his interpretation of the rules was correct, informed us
of his decision to repay the House for the cost of the headed
paper and 562 second class envelopes he had used to send out the
new address details to constituents on his database, and to charge
this against his IEP instead.[6]
8. We have drawn Mr Foster's decision to the Commissioner's
attention and he has commented as follows:
"As I noted in paragraphs 8 and 40 of my
report to the Committee on this complaint, a Member may use his
IEP to meet the cost of stationery, plain envelopes and postage
to convey surgery and contact details to his constituents. Had
Mr Foster initially met the cost of his 16 December letter from
his IEP in this way, there would have been no reason for me to
report adversely to the Committee on this limb of the complaint.
The Committee may feel that Mr Foster's decision
removes the need for it to adjudicate further on this aspect of
my report."
9. There is no question of Mr Foster having made
inappropriate use of resources provided at public expense in sending
out this mailing to constituents, and he had sufficient headroom
in his IEP to fund this. We therefore agree with the Commissioner
that Mr Foster's decision of 9 May to fund this mailing from his
IEP removes the need for us to adjudicate further on this aspect
of the complaint.
10. The Commissioner also commented:
"The Committee will recognise that Mr Foster
continues genuinely to believe that his interpetation of the Stationery
and Postage Rules is correct. The fact that, as this case has
revealed, it is possible to reach quite different conclusions
as to what is permitted and what is not permitted under the Rules
is evidence of the pressing need for those Rules to be revised
and clarified."
We agree with the Commissioner.
11. The existing rules, which derive their force
from approval by the Speaker on the advice of the Administration
Committee, are reproduced in full at Appendix 3. Surprisingly,
these do not appear to be readily available to Members. Guidance
on their content is, however, available on the House Intranet,
and in a leaflet issued by the Serjeant-at-Arms, but in our view
the rules themselves should be readily available.
12. The Commissioner has commented[7]
on the 'evident complexity' of the rules and that there is at
the moment no single authoritative document to which Members and
their staff can turn which sets out all the relevant considerations
in plain language. We agree with him that there should be, not
least because since the House extended the scope of the Code of
Conduct in July 2005 to include misuse of facilities and services,
complaints of such misuse (which include misuse of stationery)
have been a matter for the Commissioner in accordance with Standing
Order No. 150, and therefore for adjudication by us.
13. We recommend that both the Serjeant at Arms'
leaflet and intranet guidance on stationery be revised as soon
as possible to set out, in full, the authoritative text of the
existing rules, together with appropriate explanatory material,
including any relevant case law. This would represent a start
in providing for Members and their staff, both at Westminster
and in the constituency, the authoritative guidance which the
Commissioner rightly says is lacking at present. If Members are
still in doubt as to the interpretation of the rules, they should
seek advice.
14. However, this step alone will be insufficient
to achieve the necessary standards of clarity and certainty. This
is the first case we have dealt with involving allegation of misuse
of stationery. It has revealed a number of uncertainties over
the proper interpretation of what constitutes a circular and the
scope of communications which can properly be described as 'solicited'.
It is essential that these uncertainties are removed as soon
as possible.
15. From the introduction of pre-paid stationery
in 1969, a key element in the regulatory regime has been the good
sense of individual Members, reinforced by the limited rules which
successive Speakers, together with the relevant Committees of
the House, have laid down over the years. We do not believe that
this framework needs to change now that the House has brought
these matters within the scope of the Code of Conduct. We are
also convinced that the alternative, of piecemeal and essentially
arbitrary development of the rules through our own decisions in
response to the chance mechanism of complaints, would not be a
satisfactory alternative. Our role in this respect is to apply
the rules laid down by the appropriate authority, not to make
them.
16. We agree with the Commissioner that a single
unified stationery and postage regime governed by one clear set
of rules would reduce the scope for both deliberate and inadvertent
misuse. This would undoubtedly be of benefit both to Members themselves,
and to wider public confidence in the system. We are happy to
work with the House of Commons Commission and the Administration
Committee as appropriate to ensure that, whatever arrangements
ultimately emerge from the current review, the rules are clear
and capable of effective enforcement. However, whether or not
a single unified regime results from the current review, we recommend
that the existing rules are clarified as a matter of urgency in
the areas we have identified in paragraph 14 above.
17. We and the Commissioner nevertheless have
to interpret the existing rules in the meantime. When our
predecessor Committee recommended bringing misuse of facilities
within the scope of the Code, it was not its intention that this
should lead to a spate of complaints of minor and technical breaches
of the rules relating to the use of stationery being subject to
the full investigative procedure of the Code, culminating in some
cases in a report to the House. It was to avoid this that it recommended,
and the House subsequently introduced into the Standing Orders,
a procedure designed to ensure that many cases, particularly those
where any breach was minor or inadvertent, could be disposed of
by the Commissioner without the need for this through and extension
of the rectification procedure which already existed in relation
to minor failures to register or declare interests.[8]
18. We will be discussing with the Commissioner
how this aim should be reflected in criteria, agreed between him
and us, for determining whether complaints involving alleged misuse
of stationery are dealt with by him under the rectification procedure,
as distinct from being the subject of a report to us. When
we have agreed these, we anticipate that the categories of case
on which he will continue to report to us will include cases where
there is clear evidence of an intention on the Member's part to
breach the rules; there has been an evident failure by the Member
to exercise good sense; there are significant sums of money at
issue; there are new issues of practice or principle involved,
on which the Commissioner wishes us to express a view; or where
the Commissioner considers that the complaint could be dealt with
under the rectification procedure, but the Member concerned does
not agree with this.
Mr
Foster's Annual Report
19. Mr Luff alleged that Mr Foster's annual report,
which is reproduced at Appendix 4, breached the rules on publications
funded from the IEP in three respects.[9]
The Commissioner in his report, reflecting the view of the Department
of Finance and Administration (DFA), considered that it did so
only in respect of one of these,[10]
the captions of three photographs that include explicit reference
to the 'Labour Government', which Mr Terry Bird, Director of Operations
in the DFA, considered had "strayed into party political
comment".[11] Mr
Bird told the Commissioner that DFA is minded as a result, following
its usual practice in cases where it appears that inappropriate
material has been included in an IEP-funded publication, to initiate
recovery proceedings against Mr Foster in respect of the payment
made from his IEP to cover the cost.
20. Mr Foster maintains that the references in the
captions to 'the Labour Government' are factual and not party
political either in intent or in nature.[12]
21. We accept that Mr Foster did not set out to
break the rules prohibiting the inclusion of party political material
in an IEP-funded publication and note that he accepts, with hindsight
that "it would have been better to have let the Department
of Finance and Administration see the text first to iron out any
matters of interpretation".[13]
We understand why the Commissioner concluded that, in respect
of each of the three captions, the sentence which includes a reference
to 'the Labour Government', may be seen as party political in
character. We agree with the Commissioner that Mr Foster was not
in breach of the rules in relation to the two other aspects complained
of.
22. In his evidence to the Commissioner, Mr Foster
has drawn attention to a number of examples of other cases where
both newsletters and websites include material which, if the subject
of a complaint, might be adjudged to be party political in nature
on the tests applied by the Commissioner and the DFA.[14]
We do not therefore believe that it would be right for us to single
Mr Foster out in this respect.
23. We are aware of a case in the last Parliament
where our predecessors upheld a complaint in respect of inappropriate
material in a part-IEP funded publication, and repayment of the
IEP element ensued.[15]
Whereas the current case might, at worst, stray over the border
of what constitutes party political comment, it is clear from
our predecessors' report that the previous case involved a clearer,
more deliberate transgression.
24. There are clearly significant differences
of interpretation amongst Members as to the acceptable limits
of party-related material that can properly be included in IEP
funded material. The three sentences in this report referring
to 'the Labour Government' do not appear to be outside the range
of Members' current practice. In these circumstances, we are not
prepared to find Mr Foster in breach of the Code in this respect,
nor do we consider that he should be required to repay the cost
of his annual report.
25. These significant differences of view represent
an unsatisfactory position from the perspective of those who have
to enforce the rules, and need to be addressed. We intend to report
further to the House on the general matter of publications funded
from the IEP and will look at the scope for a tighter definition
of permissible expenditure. In the meantime, we once again draw
the attention of the House to the importance of ensuring high
standards of propriety in the use of Parliamentary allowances,
and reiterate Mr Speaker's advice in his introduction to the Green
Book that Members should seek advice in cases of doubt.
1 P. 7. Back
2
P. 29. Back
3
The cost of such stationery is met from the House of Commons:
Administration Vote, whereas Members' allowances fall to the House
of Commons: Members' Vote. Back
4
WE9, p. 27. Back
5
Appendix 2, p 29. Back
6
See also Appendix 3, p 31. Back
7
Appendix 1, para. 52. Back
8
SO No. 150 (3) (b). Back
9
Appendix 1, para. 2. Back
10
Appendix 1, para. 48. Back
11
Appendix 1, para. 25. Back
12
WE9, p. 27. Back
13
WE9, p. 27. Back
14
WE7, p. 25 and WE9, p. 27. Back
15
First Report, Session 2004-05 (HC 71). Back
