Conclusion
34. There is, in essence, no dispute about the facts
underlying this complaint. The dispute lies over how they, and
Ms Thornberry's actions in particular, are to be interpreted.
I first examine these actions against the two limbs of Councillor
Hitchins's complaint as set out in paragraph 1 above, and then
consider whether the actions breached the Code of Conduct.
35. Councillor Hitchins's basic contention in the
first limb of his complaint is that Ms Thornberry altered an electronic
copy of an Electoral Commission news release by inserting a quotation
from herself, before forwarding it to the news media as if it
were still an official document from the Commission. Ms Thornberry
does not, in effect, challenge the essential facts on which this
allegation is based. But there is considerable dispute about how
what happened is to be interpreted. Councillor Hitchins argues
that this action by Ms Thornberry is "close to forgery",
and calculated to damage public trust in her and respect for Parliament
more generally. Ms Thornberry says that she was merely following
a regular practice, and doing so entirely out of a wish to support
the Electoral Commission's public awareness campaign. With hindsight,
however, she accepts that it would have been better if she had
spoken to the Commission before acting as she did, and says that
she has altered her office procedures to ensure that a similar
situation does not arise in future.
36. The dispute over how Ms Thornberry's actions
should be interpreted is brought into stark relief by the second
limb of Councillor Hitchins's complaint. This is that, in adding
to and re-issuing the Commission's news release as she did, Ms
Thornberry was attempting to associate the Commission with the
local Labour Party's criticisms of the record of the Liberal Democrat
administration in Islington on electoral registration matters.
This raises the question of Ms Thornberry's motivation in relation
to her admitted actions.
37. There is no doubt that the context of what occurred
was the fraught local politics in Islington in the run-up to the
May council elections. Ms Thornberry does not deny that context
(see the fourth bullet point in paragraph 18 above). Her decision
to invite Councillor West to participate in the Electoral Commission's
photo-call suggests that she was indeed well aware of it. It is
unfortunate that the Commission's intention to involve only Members
of Parliament in the event was obscured by that decision and,
as Mr Wardle has conceded (see paragraph 24), that Commission
representatives did not question it at the time.
38. A good deal of the force of Councillor Hitchins's
complaint rests on his assertion that, in the quote she inserted
in the Commission press release, Ms Thornberry deliberately confused,
for reasons of party advantage, the distinction between the 'response
rate' and the 'registration rate'. He says that this distinction
had repeatedly been explained to Ms Thornberry and to Councillor
West, and infers from this and the fact that there was party political
contention about Islington's record on electoral registration
that Ms Thornberry was deliberately trying to score party political
advantage through her choice of words. However, material provided
by Ms Thornberry goes some way to support her contention that
the distinction between the 'response rate' and the 'registration
rate' was not as clear to her when she inserted her quote as it
has no doubt subsequently become. The clarification she was undoubtedly
given in a letter of 20 February 2006 from the Electoral Services
Manager of Islington Council did not reach her until the day after
she had forwarded the amended Commission press release to local
media. It is clear from the comments of the Electoral Commission
that Ms Thornberry might, in this sensitive area, have done well
to have chosen the words she inserted in that press release more
wisely. Ms Thornberry denies, however, any intention to mislead
and I do not think the evidence before me on this point, such
as it is, contradicts her denial.
39. Councillor Hitchins argues that Ms Thornberry's
actions amounted to putting short-term political interest before
the public interest. Whatever other considerations may or may
not have been in her mind, I am clear on the basis of the evidence
that Ms Thornberry's primary motivation throughout was her concern
(a concern which it is clear was widely shared across parties)
about the relatively low response rate to the electoral canvass
in Islington.[13]
40. Summing up my view on the two limbs of Councillor
Hitchins's complaint:
a) I find proven on the facts the allegation
that Ms Thornberry inserted a quotation from herself in an Electoral
Commission press release, without first obtaining the Commission's
permission, before sending it to the media in a form which might
reasonably have given the impression that it was still an official
document from the Commission.
b) Whilst I do not doubt that Ms Thornberry's
primary motive in taking this action was, as she asserts, to support
the Commission's campaign to improve response rates, and consequently
levels of voter registration, in Islington, she was at the least
unwise, as she now acknowledges, to amend the Commission's release
without its permission. Her action was particularly unfortunate
because, in the heated context of local politics in Islington
in particular, it could have impaired the perceived independence
of the Commission by appearing to associate it in some way with
the dispute between the parties about Islington's electoral registration
record. The independence of the Commission is something it is
in the interests of all concerned with the health of the democratic
process to protect. It would clearly have been preferable either
for Ms Thornberry to have sought the Commission's permission to
amend the release, or simply to have issued her own press release
alongside that of the Commission.[14]
It is welcome that Ms Thornberry has been prompted by this episode
to amend the procedures in her office to ensure that a similar
occurrence does not happen again.
c) For the reasons set out in paragraphs 38-39
above, I do not think the evidence supports Councillor Hitchins's
claim that, in the quotation she inserted in the Commission's
press release, Ms Thornberry was deliberately seeking to associate
the Commission with a party political dispute in Islington.
41. Having expressed this view on the evidence in
relation to Councillor Hitchins's complaint about Ms Thornberry's
actions, I turn to consider his claim that those actions breached
paragraphs 5, 9 and 15 of the Code of Conduct for Members. I examine
each of these paragraphs in turn.
42. Councillor Hitchins claims that Ms Thornberry's
actions breached paragraph 5 because:
a) Ms Thornberry's action in amending the Commission's
release without authority and attribution came "close to
forgery". Forgery includes the making of a document which
purports to have been altered in any respect on the authority
of a person who did not in fact authorise the alteration in question,
with the intention of inducing some other person who accepts it
as genuine to do some prejudicial act. I do not believe that what
Ms Thornberry did in adding a quotation in her own name to the
Commission's press release can, on any commonsense interpretation,
be regarded as falling within the definition of forgery, and I
note that Councillor Hitchins's says only that her actions came
"close to forgery"(emphasis added). But in any
case, the proper place for such an allegation to be tested is
in the courts, and Councillor Hitchins has not sought, so far
as I am aware, to institute any action there. I do not therefore
find that Ms Thornberry breached this aspect of paragraph 5.
b) Councillor Hitchins also alleges that Ms Thornberry's
actions were dishonest and breached the requirement of paragraph
5 that Members "act on all occasions in accordance with the
public trust placed in them." I have already indicated that,
while unwise, Ms Thornberry's actions were not in my view, based
on the evidence, dishonest. I therefore do not think they breached
this aspect of paragraph 5.
43. I do not find that Ms Thornberry breached
paragraph 5 of the Code of Conduct.
44. Councillor Hitchins argues that Ms Thornberry
breached paragraph 9 of the Code in that she put short term party
political interest before the public interest. I believe that
the sort of personal interests to which paragraph 9 of the Code
is referring are essentially financial rather than party political
in character. However, leaving that on one side, an improvement
in the electoral response rate in Islington is self-evidently
in the public interest. I have already indicated that I accept,
on the basis of the evidence, that Ms Thornberry's primary motivation
was to support efforts to achieve this. I do not therefore
find that Ms Thornberry breached paragraph 9 of the Code.
45. Councillor Hitchins contends that Ms Thornberry
breached paragraph 15 of the Code in that her conduct undermined
the standing of both Members and the Electoral Commission, the
integrity of which she had a duty to uphold, and so brought Parliament
into disrepute. The Committee on Standards and Privileges has
only once previously had to address a case in which the disrepute
provision of the Code has been at issue and there is therefore
limited precedent on which either I or the Committee can draw
in addressing this question.[15]
46. My own reading of paragraph 15 suggests that
the following are the key tests to apply in deciding whether it
has been breached:
a) Was the action complained of taken in a parliamentary
capacity, or in any other public capacity in relation to which
his or her membership of the House is relevant to a material extent
(ie not merely incidental)?
b) Was the conduct such as might reasonably be
considered likely to damage public trust and confidence in the
integrity of Parliament or to bring the House, or its Members
generally, into disrepute?
47. In applying these tests, there are a number
of subsidiary considerations to be weighed:
a) The action or conduct in question has to be
such as could damage public trust and confidence in the integrity
of Parliament, or the reputation of the House and of Members
generally. The provision is not primarily directed at confidence
in individual Members. That is essentially a matter between a
Member and his or her constituents, to be tested through the electoral
process.
b) It follows that not every unwise, or even
improper action by a Member will constitute a breach of paragraph
15. An individual Member, acting improperly in his or her capacity
as a Member, will tend to damage the reputation of Members generally
if, for example, the misconduct in question is taken by the public
to be the kind of conduct that might be expected of any Member.
That is not an inevitable consequence of any improper action by
a Member, but something to be weighed on a case by case basis.
c) In deciding whether paragraph 15 has been
breached it is not essential to show that the Member concerned
intended to damage the reputation of the House. A Member may breach
paragraph 15 by acting recklessly or negligently. Nor is it essential
to show that his or her actions did in fact bring the House into
disrepute. The test is whether a reasonable person might consider
them likely to do so. Both factors—intent and effect—may,
however, be relevant to weighing the seriousness of what happened.
d) How the public might perceive a Member's actions
is as relevant a factor as the substance of those actions themselves.
This was certainly a relevant consideration in the preceding case
mentioned in paragraph 45 above.
e) As with the application of other aspects of
the Code, a commonsense, proportionate view is needed, which takes
into account all the relevant facts of the case.
48. Adopting such an approach, I consider Ms Thornberry's
actions to have been unwise and unfortunate but I do not believe
that, taken as a whole, they were such as to bring the House or
Members generally into disrepute. Her action was certainly taken
in her parliamentary capacity. If its effect had been such as
might reasonably be considered likely to leave in the minds of
the public the impression that Members routinely alter the press
releases of official bodies without permission, and then try to
pass off the altered text as if it were the original, her conduct
would also have met the second test in paragraph 46. But I do
not think a reasonable person, looking at the evidence in the
round, would assess her conduct in that way. The altered press
release she sent to local media was sent with a covering e-mail
that indicated that it had come from Ms Thornberry's office. There
is no evidence of an intention to deceive or to manipulate the
public. Nor was that the effect of what happened. None of the
local papers carried Ms Thornberry's altered press release, and
there has hitherto been very limited press coverage of Councillor
Hitchins' allegations. So, while Ms Thornberry's actions may or
may not have damaged confidence in her among her electors, I do
not think they can be said to have damaged public trust in the
integrity of Parliament or the reputation of the House
or of Members generally. Taking what I believe to be
a proportionate view, I do not therefore find that Ms Thornberry
breached paragraph 15 of the Code.
49. To sum up, on the evidence before me, I find
the first limb of Councillor Hitchins's complaint proven as to
the facts, but the second not proven. Ms Thornberry's actions
in adding a quotation in her own name to an Electoral Commission
press release without the Commission's permission and then distributing
the release to the media in a form which could suggest it was
still a Commission document were unwise and unfortunate. They
are not to be condoned. For the reasons I have set out in paragraphs
42-48, I do not, however, believe they amounted to a clear breach
of the Code of Conduct.
50. In his letter of 13 April (WE12) the Chief Executive
of the Electoral Commission seemed to express a similar, balanced
view of Ms Thornberry's actions. He said:
" We do not consider that it was acceptable
for Ms Thornberry to have changed an Electoral Commission press
release without our permission and were surprised that this happened.
We made our view clear to her but it was not our intention
to pursue this matter any further." (emphasis
added)
51. Whilst the Committee will wish to consider whether
it agrees with my conclusions on Councillor Hitchins complaint,
it may feel that, the relevant facts having been exposed in this
report, it may be best left to the electors of Islington South
and Finsbury in due course to assess what weight to attach to
them.
22 June 2006 Sir Philip Mawer
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