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Select Committee on Standards and Privileges Second Report


Conduct of Mr Norman Baker, Mr Malcolm Bruce and Mr Sadiq Khan



Introduction

1. We have received a memorandum from the Parliamentary Commissioner for Standards concerning complaints against Mr Norman Baker, Member for Lewes, the Rt Hon Malcolm Bruce, Member for Gordon, and Mr Sadiq Khan, Member for Tooting. The complaints are all separate, but they have a common theme in that each of them relates to the contents of a publication circulated by the Member concerned in his constituency and funded either from the Communications Allowance or the Incidental Expenses Provision.[1]

2. We consider each of the complaints separately below. In accordance with our usual practice, we have shown a copy of the memorandum to each of the members concerned. Mr Baker's comments are reproduced at Appendix 2, Mr Bruce's at Appendix 3 and Mr Khan's at Appendix 4.

Complaint against Mr Norman Baker

3. At the centre of the complaint by Mr Tristan Donovan against Mr Baker is an 'advertising feature' which appeared in a newsletter circulated by him in his constituency and partly funded from Mr Baker's parliamentary allowances.[2] The advertising feature related to the work of Ms Sharon Bowles, a Liberal Democrat Member of the European Parliament, one of the ten MEPs representing the South East Region. It included a statement that it had been "supported by the Alliance of Liberal Democrats for Europe."[3] Mr Baker did not seek guidance from the DFA on this report, in contrast to his practice in previous years.[4]

4. Mr Donovan raised two questions:

  • whether it was acceptable for the IEP to be used to fund a publication that also carried party political material; and
  • whether the Alliance of Liberals and Democrats for Europe had paid proportionately the same amount as other advertisers.

5. On the second question, the Commissioner has found no evidence to suggest that Ms Bowles received more favourable terms than other advertisers.[5] We agree with the Commissioner that this element of Mr Donovan's complaint should be dismissed.

6. On the first question, we agree with the Commissioner that Mr Baker had overall responsibility for the contents of his newsletter, including the advertising material.[6] To come to any other conclusion would open a very substantial loophole through which party political and campaigning material specifically prohibited in IEP and Communications Allowance funded publication could be incorporated. It would also be inconsistent with the relevant rules: both the Communications Allowance rules, and the IEP rules that preceded them, make explicitly clear that no party political or campaigning material is allowable in any part of a publication funded, in whole or in part, from the allowances.

7. The Commissioner advances two arguments in support of his recommendation that the first ground of the complaint be upheld:

  • that Ms Bowles' feature crossed the line into party political material;[7] and
  • that the selective inclusion of material from one of the ten MEPs representing the European Parliament electoral region within which Mr Baker's constituency falls who happens also to be drawn from his own party arguably imparts a party political element to the newsletter.[8]

8. In his evidence to us, Mr Baker argues that:

  • the terms of the advertisement were consistent with public funding through funds made available by the European Parliament to the Alliance of Liberals and Democrats in Europe, a political group of the Parliament, although he accepts that this is not conclusive of whether the relevant rules of the House were complied with;[9] and
  • the advertisement does not breach the rules of the House and in particular that "given the relatively recent changes to the rules to allow proactive communications to be funded from parliamentary allowances are not yet clear, and given what is expressly permitted, it was not unreasonable to assume that the mention of a party leader would also be permissible".[10]

He also argues that it is unfair to draw any inference from the fact that his report included material from Ms Bowles alone of the MEPs representing the South East Region.[11]

9. We agree with the Commissioner that Ms Bowles' feature, by promoting a party political campaign launched by the Liberal Democrat leader, imported a party political element to Mr Baker's newsletter. We note that, while Mr Baker disputes that the contents of the advertisement were political, he concedes that the inclusion of references to the Leader of his party could be thus construed. He argues, though, that these should be considered to fall in this case within the range of political material tolerated in practice.[12]

10. In effect, Mr Baker is seeking to argue that the question of whether material has a party political or campaigning element should be assessed on a relative basis. Like the Department of Finance and Administration,[13] we do not believe this to be the appropriate test. Mr Baker does not dispute that Ms Bowles is clearly indicating her support for a specific campaign by the leader of her party: the material therefore in our view falls outside the scope of what is permitted in IEP and Communications Allowance funded publications, and it is immaterial in reaching this conclusion that other publications, if the subject of a complaint, might or might not be adjudged to be in breach of the same rules because they have other characteristics that are of a party political or campaigning nature.

11. We do not accept Mr Baker's argument that the introduction of the Communications Allowance has any bearing on what was acceptable for inclusion in this document. It was published and distributed when the IEP was the relevant allowance, and the extent of its compliance with the rules falls to be judges solely in that context.

12. As far as we are aware, this is the first occasion on which there has been a complaint concerning a publication which includes material from an MEP. In essence, the novel issue raised is whether a joint publication with a member of the same party elected to a different democratic institution for a multi-member constituency, not all of whom are members of the same party, by definition has a political element.[14] On this point, we agree with the Commissioner that the inclusion of material from an MEP from a Members' own party does enhance the risk of the publication being perceived as a party, rather than a parliamentary, publication.

13. We reject any implication that an advertisement paid for out of funds provided by the European Parliament reduced the publication's overall call on public funds. The practical effect, assuming that this element of the cost would otherwise have been met from public funds, was to free up more of Mr Baker's IEP for the year concerned for his own use.

14. This complaint has raised the novel issue of the extent to which joint publications with MEPs can properly be funded from parliamentary allowances, an issue to which the Members Estimate Committee may wish to give attention in the context of its forthcoming review of the Communications Allowance.

15. We agree with the Commissioner that this element of Mr Donovan's complaint should be upheld, and we reiterate that the inclusion of material of a party political nature is not permissible in publications funded from parliamentary allowances. However, in the light of the particular circumstances of the case, we do not consider that any further action is appropriate.

Complaint against Mr Malcolm Bruce

16. Ms Ethel Simpson's complaint against Mr Bruce centres on the circulation by him of an IEP-funded report bridging the May 2007 Scottish Parliament election, and the inclusion of certain photographs which could be seen as promoting the electoral interests of the Scottish Liberal Democrats.[15]

17. As the Commissioner points out,[16] and we have previously noted,[17] there is no rule of the House prohibiting the distribution of reports in the circumstances in which Mr Bruce did so.[18] We agree with the Commissioner that this element of Ms Simpson's complaint should be dismissed.

18. This was the first Scottish Parliament election at which the Holyrood and Westminster constituency boundaries were not co-terminous.[19] For the six preceding years, Mr Bruce told us, [20] he had issued a combined annual report with the MSP, with his report appearing on one side of an A3 sheet and the MSP's on the other", a practice he maintains was also followed in other constituencies and by other parties.[21] For this reason he could not see why he could not continue to highlight the fact that he had worked with the Gordon MSP on constituency issues relevant to both Parliaments.

19. Mr Bruce also pointed out that responsibility for transport issues was shared between Westminster and Holyrood, especially in relation to railways, and the photograph of Mr Nicol Stephen was designed to illustrate his representations to him in his capacity as Transport Minister on a specific constituency issue.

20. We agree with Mr Bruce that there is no reason in principle why his reports to constituents should not refer to constituency work he has carried out in conjunction with MSPs, provided that they do so in terms which are consistent with the relevant rules of the House. The key issue in this case is whether the terms in which two MSPs, both from the same party as Mr Bruce, were referred to in captions accompanying their photographs in his report, were so consistent, and also whether the inclusion of the photographs themselves was appropriate.

21. Mr Bruce maintains that the photographs were not included for the purpose of promoting either his own party generally, or his party's candidate in the Holyrood constituency of Gordon at the Scottish Parliament elections specifically. He concedes, though, that the captions might have been more appropriately worded, and the he did not check them before the publication went to the printer.[22] He also maintains that the report was originally scheduled to have been distributed by the Royal Mail in February, as was his normal practice, but when it was near completion, Royal Mail changed the dates to a period running from March to May, with an alternative of July. The latter choice would have cost him the option of IEP funding out of his 2006-07 parliamentary allowances and would also have meant a complete revision of the text.[23]

22. As in Mr Baker's case, this complaint raises difficult issues. We accept Mr Bruce's assertion that there was no intention on his part to promote either his party, or its candidate in Gordon in the context of the May 2007 Scottish Parliament general election, and that the inclusion of the photographs of Ms Radcliffe were intended to demonstrate work they had collaborated on when the Westminster and Holyrood constituencies were co-terminous. Mr Bruce has also put forward an argument for the inclusion of the photographs in the context of reporting on his involvement with members of the Scottish Parliament in the course of representing his constituents at Westminster. The key questions, however, are whether, in all the circumstances, the captions were appropriate, and whether the number of photographs featuring Ms Radcliffe went beyond what was reasonable for the specific purpose of Mr Bruce's report.

23. Like the Commissioner, we take the view that the reference to Mr Nicol Stephen as the Scottish Liberal Democrat leader was inappropriate—the caption should have referred to his Ministerial capacity. We also agree with him that two photographs of Nora Radcliffe was excessive if the sole purpose of their inclusion was to demonstrate that Mr Bruce worked with the local MSP on matters of common interest, although we note that only one of them specifically identifies her as an MSP and neither mentions her party.

24. Although it was not part of the original complaint, we, like the Commissioner,[24] share the opinion expressed on balance by the DFA's Director of Operations that the wording of the lead article about post office closure could appropriately have been adjusted to reduce its critical focus on the actions of the Government in favour of a heightened focus on the actions of Mr Bruce himself. We agree with the Commissioner that this is a consideration to be borne in mind when assessing the impact on readers of Mr Bruce's report as a whole in the context of an election period.

25. We therefore uphold this element of the complaint against Mr Bruce.

26. We have given very careful consideration to whether we should recommend any further action against Mr Bruce. We appreciate the difficulties in which he found himself in relation to the preparation and distribution of this report. On the other hand, he does not appear to have grasped fully the possible impact of these in relation to the potential impact of the publication in relation to the May 2007 Scottish Parliament general election, nor did he check the captions on the photographs as he might have been expected to do, in all the circumstances. It is also clear that any benefit to Norah Radcliffe personally in Gordon from inclusion in the report, or to the Scottish Liberal Democrat party generally in both the Scottish Parliament constituencies in which the report circulated was, at best, limited.[25] We nonetheless consider that Mr Bruce should repay £500 of the £2941.16[26] he has claimed from his 2006-07 IEP in respect of this publication.

Complaint against Mr Sadiq Khan

27. As the Commissioner points out,[27] Mr Newman's complaint against Mr Khan's newsletter focuses on two main issues:

  • the inclusion on its front page of the Labour Party's rose logo in red, a colour also widely associated with the party; and
  • the inclusion of a picture of Mr Khan standing beside a sign describing him as the "Labour Member of Parliament for Tooting."

28. Mr Khan has submitted[28] a detailed critique of the Commissioner's conclusions in which he seeks to rebut the Commissioner's view that the logo was "not proportionate and discreet". He also argues that he has not breached the rules regarding aspects of the contents of his newsletter which were commented on in this context by the Department of Finance and Administration and the Commissioner.

29. It is common ground between Mr Khan and the Commissioner that the element of Mr Newman's complaint concerning the photograph of him outside his constituency office should be dismissed. We agree.

30. The exchanges about the logo reveal some of the practical difficulties in applying the "proportionate and discreet" test. Mr Khan in effect argues for a quantitative and precedent-based approach, and concludes that the logo was acceptable on the basis of another recent decision of ours. The DFA's Director of Operations describes the single logo as "slightly large" but "in keeping with the size of the banner heading" and, by implication, acceptable.[29] The Commissioner comes to his conclusion on the grounds of the size of the logo in the context of the page as a whole, its bold appearance and its prominence that it is not "proportionate and discreet".[30]

31. In our view, the question of whether a logo is "proportionate and discreet" should be judged on the impression it may be expected to make on those who read the publication concerned. This is in effect the test we applied in different circumstances in the previous case referred to by Mr Khan.[31] In our opinion, the size, prominence and colour of the Labour Party logo on the front page of this publication is such as to give the impression to Mr Khan's constituents that the publication has been distributed on behalf of his party. We therefore agree with the Commissioner that the logo is not, in context, "proportionate and discreet", as the rules require. We therefore uphold this element of the complaint against Mr Khan.

32. The comments made by the DFA's Director of Operations about some of the contents of Mr Khan's newsletter did not form part of the original complaint. However, we agree with the Commissioner and the Director that the terms of these references (particularly the references to the Government) are "small examples of this newsletter promoting a political party or its policies".[32]

33. As with the other two cases in this report, this case raises difficult issues. Mr Khan had sought advice on the content of his newsletter, although it would appear at a later stage than was ideal. The extent to which he could have acted on the DFA advice, even if he had received it in a timely manner, must be open to question. The immediate political advantage his party might have obtained from the newsletter overall, and the prominent use of the logo in particular, was, however, limited, because there were no elections in London in 2007. Notwithstanding that, the use of such a prominent logo was a clear breach of the rules, and Mr Khan should therefore repay £500 of the sum he has claimed from the Communications Allowance in respect of this publication.

General conclusions

34. All three cases have demonstrated difficulties for the Members concerned in complying with the rules relating to the use of parliamentary allowances for publication of newsletters, and for us in interpreting and enforcing them. We therefore welcome the intention of the Commissioner to submit a further memorandum to us on some of the general issues raised by these and other recent cases.

35. Members are recommended to ensure that proposed publications are fully in compliance with the requirements of the rules before they commit themselves to the relevant expenditure. In this context, we remind Members that advice on the content of their publications is available from specialist staff in the Department of Finance and Administration, as set out in the rules and guidance on producing newsletters and other publications from the Communications Allowance.[33]



1   The Commissioner also included in this memorandum a summary of the reasons why he dismissed without detailed investigation a complaint against Ms Julie Kirkbride, Member for Bromsgrove. This also arose from the publication by her of a report to constituents. Back

2   The imprint on the newsletter stated that it had been part-funded from the IEP. However, because of delays in settling the account, it has in fact been paid for out of Mr Baker's Communication Allowance for the current financial year. Back

3   Appendix 1, para. 7. Back

4   Appendix 1, para. 25. Back

5   Appendix 1, para. 79. Back

6   Appendix 1, para. 81. Back

7   Appendix 1, para. 86. Back

8   Appendix 1, para. 90. Back

9   Appendix 2, para. 5, p. 68. Back

10   Ibid, paras. 6-9, p. 68-69. Back

11   Ibid, paras. 11-13, p. 69. Back

12   WE 17, p. 61 and Appendix 2, para. 8, p. 69. Back

13   Appendix 1, para. 50 Back

14   A similar situation could in principle exist in the case of a joint publication with a regional list member of the Scottish Parliament or the Welsh Assembly. Back

15   Appendix 1, paras. 9-10. Back

16   Appendix 1, para. 93. Back

17   First Report, Session 2007-08, para 25. Back

18   The guidance on use of the Communications Allowance, which develops IEP practice, makes clear that the imminence of an election does have some implications for permissible content. Back

19   With effect from the May 2007 Scottish Parliament elections, Mr Bruce's Westminster constituency of Gordon covered the Scottish Parliament constituency of the same name and part of the Aberdeen North constituency. Back

20   Appendix 3, p. 71. Back

21   Appendix 3, p. 71. Back

22   Appendix 1, para. 97. Back

23   WE 14, p. 59. Back

24   Appendix 1, para. 98. Back

25   In Gordon, Mrs Radcliffe came second, losing to the SNP candidate by 2062 votes. In Aberdeen North, the Scottish Liberal Democrat candidate came third, with 3836 votes. Back

26   This includes printing costs of £1627 and distribution costs of £1314.16. Back

27   Appendix 1, para. 99. Back

28   Appendix 4, p. 74. Back

29   Appendix 1, para. 106. Back

30   Appendix 1, para. 107. Back

31   First Report from the Committee on Standards and Privileges, Session 2007-08, HC 94, para 14. Back

32   Appendix 1, para. 108. Back

33   "The Communications Allowance and the use of House stationery", Appendix Two, paras. 19 and 20. Back


 
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Prepared 13 December 2007