My Inquiries
13. Having considered carefully Mr Hands' letter,[6]
I concluded that he had provided me with sufficient evidence of
a potential breach of the rules of the House in respect of the
subletting of Mr Brown's Parliamentary Advice Centre in Kirkcaldy
to merit an inquiry. I thought it right to consider also the possible
need to register any income he received from this subletting in
the Register of Members' Interests. I did not consider, however,
that Mr Hands had provided sufficient evidence to substantiate
his complaint about Mr Brown's actions in respect of the London
property. I wrote to Mr Hands accordingly.
14. I wrote to Mr Brown on 11 February to invite
his comments on the complaint in respect of his leasing of accommodation
in his Parliamentary Advice Centre.[7]
I invited Mr Brown to let me know the date on which any current
subletting arrangements for his Parliamentary Advice Centre had
been instituted and to give me information about any previous
subletting; the basis of any rental agreement; whether any income
from the sublet or sublets had been used to offset claims on his
parliamentary allowances, in particular the Incidental Expenses
Provision; and what consideration he had given to the possible
need to register income received as a result of any such sublets
in the Register of Members' Interests.
15. Mr Brown responded in his letter to me of 25
March.[8] He explained
that from 31 May 2005, when he had become the Member of Parliament
for the Kirkcaldy and Cowdenbeath constituency following boundary
changes, he began renting an office in Kirkcaldy as a Parliamentary
Advice Office under a joint lease with Ms Marilyn Livingstone
MSP.[9] This was in addition
to his main constituency office in Cowdenbeath which he also rented.
The Kirkcaldy lease was organised by Ms Livingstone working with
his assistant. The lease was entirely in line with the rules set
by the Scottish Parliament. The lease was drawn up by an independent
solicitor who was not Mr Brown's or Ms Livingstone's solicitor,
and they used an independent surveyor to calculate the right level
of rent. A portion of the office space which was not needed by
his Parliamentary Advice Office or by Ms Livingstone was leased
to the Kirkcaldy and Cowdenbeath Constituency Labour Party at
a charge of £2,519 a year. Through the work of the independent
solicitor and surveyor, the charge was based on the market rent
for the number of square feet occupied by the party.
16. From the outset, Mr Brown said that his Parliamentary
Advice Office had been meticulous in ensuring that the share of
the money received from the constituency party was deducted from
the amount which was then claimed from the Fees Office (now part
of the Department of Resources) for the cost of running the constituency
office. Each relevant claim to the Fees Office made it explicit
in writing that deducted from the claim for rent was £1,259.49
per year "paid from the Labour Party for rent of office".
17. The lease was examined and agreed only after
discussion with the Scottish Parliament. Ms Livingstone had shown
the lease to—and sought the advice of—the Scottish
Parliament's officers. Mr Brown's office assumed that, having
followed the advice of these officials, all arrangements were
in order. The office arrangement was also declared in the published
accounts of the Labour party.
18. Mr Brown said that in January 2006, the Fees
Office asked for a copy of the lease. This was supplied to them.
At no time, however, was Mr Brown's office advised that the arrangements
were inappropriate. Given this, the declaration in the relevant
claim forms and the fact that Ms Livingstone's arrangements were
clearly acceptable to the Scottish Parliament, there seemed no
reason for Mr Brown to believe the arrangements were anything
other than satisfactory.
19. Mr Brown said that in December 2007 his office
was contacted by a newspaper "wrongly alleging that public
money was being diverted to the local Labour party".
In the course of correcting that allegation, contact was made
with the Fees Office in the House of Commons to seek a statement
from them confirming their satisfaction with the arrangements.
At that point, the Fees Office advised that the arrangements should
be reorganised. Mr Brown's Parliamentary Advice Office "acted
on this advice immediately and terminated the lease".
Mr Brown said that the future lessee of the Parliamentary Advice
Office would be Ms Livingstone MSP alone. The Scottish Parliament
proposed to pay the rent and receive any income. The Scottish
Parliament would bill the Westminster Fees Office directly for
Mr Brown's share of the payment.
20. Mr Brown noted that while the Green Book referred
to the possible issue of "practical difficulties of a sublet",
in his case no such difficulties had arisen. There was no question
of any misuse of public funds and no question of the local Labour
party benefiting in any way from public funds. The lease, with
all the details of the arrangements, had been with the Fees Office
since January 2006 and no-one had asked for a change to be made.
All relevant claims contained explicit declarations of the rental
deduction and no request to explain or re-examine the arrangement
was made.
21. Consideration had also been given as to whether
the rental income from the constituency Labour party should be
listed in the Register of Members' Interests. The view was taken
that, because it was an arrangement resulting in no personal gain
whatsoever, it need not be registered. No loss to public funds
was involved either. Mr Brown said that it was thus "quite
apparent that the arrangement would have no influence on the way
I carried out my Parliamentary duties". Following a
further media inquiry on 1 February 2008, advice was taken from
the Registrar of Members' Interests on the telephone, who confirmed
that the interest was not registrable.
22. Having received Mr Brown's letter, I wrote on
25 March to the Acting Director of Operations at the Department
of Resources to invite his comments.[10]
The Director of Operations responded in his letter of 25 April.[11]
Having summarised the relevant rules (see paragraphs 6 to 10 above)
the Director stated: "Mr Brown breached the Green Book
rules when he agreed to the sub-lease of his office organised
by Ms Marilyn Livingstone MSP in September 2005". Neither
Mr Brown nor his staff had consulted the Department before setting
up the Kirkcaldy office. Nevertheless, it was clear that the arrangements
for the sub-lease were carried out professionally and, from the
documents held by the Department, it seemed that the agreement
properly reflected the space occupied by the Cowdenbeath Labour
party and that the rent was a true market value. He confirmed
that the money paid by the Labour party in accordance with the
sub-lease was deducted from Mr Brown's own Incidental Expenses
Provision claims, thereby ensuring there was no subsidy to the
Labour party. This was noted on the three claims submitted in
April 2006, April 2007 and January 2008.
23. The Director said that the files did not show
that the copy of the lease which Mr Brown said was submitted in
January 2006 had been received, but he could not rule out that
it had gone astray at some point. In January 2007 the Department
re-contacted Mr Brown's office to request a copy of the Kirkcaldy
lease and this was received and filed. Unfortunately, the Department
did not spot that the lease included a sub-lease with the constituency
Labour party. That became apparent only when Mr Brown's office
contacted the Department in December 2007 about the allegations
made in the press. The Director confirmed that discussions then
took place with Departmental officials and that Mr Brown and his
staff took swift action to put the matter right. In his view "the
position has been fully regularised".
24. The Director said that he could understand how,
having overlooked the rule change, Mr Brown or his staff might
reasonably have thought everything was in order when agreeing
the sub-leasing arrangement in 2005. This was because the Green
Book generally permitted working with political parties or other
politicians provided the arrangements were transparent and the
costs fairly divided. This had changed, however, in respect of
sub-letting following a high profile case. He noted that Mr Brown
and his staff would have been further reassured of the position
because the Department did not raise concerns when the lease was
sent (or resent) in January 2007 or when the claims were submitted
showing a deduction of monies received.
25. The Director concluded as follows: "In my
view this was an inadvertent mistake by Mr Brown, no personal
gain or gain by any party was involved and the Member acted quickly
to put it right."
26. I wrote to Mr Brown on 30 April to show him the
response from the Director of Operations.[12]
I drew Mr Brown's attention to the Director of Operations' conclusion
that he had breached the Green Book rules when he agreed to the
sub-lease of his office organised by Ms Marilyn Livingstone MSP
in September 2005, and that the Director believed the position
had since been fully regularised. I invited Mr Brown to let me
have any further comments he might wish to make on the complaint
or the Director's letter, and in particular to let me know whether
he accepted the Director's conclusion that the rules had been
breached. I invited him to let me know the date on which the new
arrangements he had implemented had come into effect.
27. I wrote also to the Director of Operations on
30 April inviting him to let me know whether Mr Brown had informed
the Department of the implementation date of the new arrangements
and when the new billing arrangements started or were expected
to start.[13]
28. Mr Brown subsequently proposed, and I accepted,
a meeting with him to discuss the complaint. It took place on
14 July. Mr Brown was accompanied by his political secretary and
I was accompanied by the Registrar of Members' Interests, who
took the note of the meeting.[14]
29. Mr Brown said that he apologised if he had inadvertently
breached the rules of the House. He had two constituency offices.
The one in Kirkcaldy was his secondary office, opened following
the 2005 boundary changes. He had himself made the arrangements
in respect of his first, main office. While he was, of course,
a party to the arrangements for the Kirkcaldy office, the lease
had been organised by the Member of the Scottish Parliament with
whom he jointly held it. The situation in respect of this office
was probably unusual as it involved a joint lease. It had never
occurred to Mr Brown that there was an issue in respect of subletting
the office.
30. Mr Brown said that he did not believe there had
been any impropriety or attempt to breach the spirit or letter
of the law. His office had meticulously ensured there was no call
on public funds or personal gain.
31. Mr Brown said that he had provided the Fees Office
(now part of the Department of Resources) with the lease and with
regular statements showing the deduction from the rental claimed
of the payments in respect of the sublet. He would have expected
to have been informed if there had been a problem. He believed
he had sent the Department the lease in January 2006. The Department
appeared to accept that it had been sent to them in January 2006,
but that it might have gone astray. The Department had re-contacted
Mr Brown in January 2007 asking him to provide a copy of the lease,
and this had been sent and received. Only when they were asked
in December 2007 did the Department suggest there might be an
issue with the arrangements. Following that, Mr Brown had acted
quickly to change the lease.
32. Mr Brown said that the Member of the Scottish
Parliament with whom he jointly held the lease had led the work
on it. She had checked the rules of the Scottish Parliament. But
as far as he was aware, the need to check the Green Book had been
overlooked. The Scottish Parliament had no similar rule prohibiting
subletting. Many of its rules were the same as those at Westminster,
but this was not one of them.
33. Mr Brown said that in his view his case was quite
different from the case which had given rise to the rule against
subletting, where the argument had been about whether money had
been returned to the public purse. He had always been meticulous
in his efforts to protect public funds. He suggested that the
Green Book provision about subletting was not quite clear in its
drafting. He suggested that the wording might be clarified.
34. Mr Brown stressed that no-one had benefited financially
from the arrangement. There was no financial benefit to him and
therefore nothing for him to register in the Register of Members'
Interests. There had been no loss to public funds nor any diversion
for a party political purpose. The solicitor and surveyor used
had been entirely independent. In 25 years as a Member of Parliament,
he had never had an issue like this. He had always meticulously
protected public funds.
35. During the course of the meeting, I asked Mr
Brown to let me have a copy of the new lease, and for confirmation
that the first payment under the new arrangement had been made
by the Department of Resources.
36. Subsequently I received a letter of 25 July from
the Director of Operations in the Department of Resources.[15]
That confirmed that the Department had received legal advice that
the revised lease met the requirements of the Green Book. The
first payment on Mr Brown's behalf to the Scottish Parliament
had been made on 2 June, in respect of the quarter beginning 1
April 2008. Mr Brown had claimed the proportion of the rent that
the Director would have expected, taking into account the interests
of the MSP and of the constituency Labour party as set out in
the lease.
37. I wrote to the Director of Operations in the
Department of Resources on 29 July and on 12 August to ask for
a copy of the lease (which I subsequently also received from Mr
Brown's office) and for advice about the identity of the landlords
and whether there was any link in the ownership with the constituency
Labour party. The lease which Mr Brown's office had given me showed
the landlord as being a registered company and three individuals.
They had leased the property to an insurance and risk management
company who sublet it to the MSP. Mr Brown was now a sub-under-tenant,
as was the Kirkcaldy and Cowdenbeath Constituency Labour Party.
38. The Director of Operations replied on 2 September.[16]
The Director confirmed that the draft lease the Department held
was substantially the same as the one I had received from Mr Brown's
office, although there were a few minor differences. These did
not in his judgement affect eligibility for reimbursement of costs
under the rules in the Green Book. The Director noted that he
had sought advice from the House's Legal Services Office about
whether the lease met the requirement in the Green Book (paragraph
5.12.7) that a Member may not sublet office accommodation paid
for from the Parliamentary allowances. The advice he received
came to the conclusion that it was clear that the requirements
of paragraph 5.12.7 of the Green Book were met.
39. The Director of Operations said that he had not
considered at any time whether the head-landlord or landlord of
the property had any link to the constituency Labour party. But
there was nothing to indicate that this might be so. From the
documentation the Department held, and from their discussions
with Mr Brown's staff, they had no reason to suspect any such
relationship. He believed it would have gone beyond what it was
necessary for the Department to do in order to verify eligibility
for payment, to make such inquiries of the Member.
40. I wrote to Mr Brown on 23 September to let him
have this response from the Director of Operations in the Department
of Resources and to make clear that I would proceed on the assumption
that neither the head-landlord nor landlord of the property had
any link to the constituency Labour party.[17]
41. In the meantime, I had written on 18 September
to the Member of the Scottish Parliament, Ms Marilyn Livingstone,
who shared the premises with Mr Brown and who Mr Brown had told
me had led the work.[18]
I asked her to confirm Mr Brown's understanding that the need
to check that the arrangements for subletting part of the property
were consistent with the rules of the House of Commons was overlooked.
42. Ms Livingstone replied on 9 October confirming
that she was involved with the arrangements of the lease and sub-lease
in full consultation with a local independent solicitor.[19]
She said that the lease and sub-leases were at all stages discussed
and agreed with the Scottish Parliament. She wrote again on 22
October to confirm that checking that the arrangements for subletting
part of the property were consistent with the House of Commons
Green Book was inadvertently overlooked.[20]
She noted that as soon as this error was brought to their attention,
the necessary steps were taken to rectify the position.
43. Reviewing all the evidence I had received, I
decided that, in order to help me to prepare the factual sections
of my memorandum, it would be helpful for me to see a copy of
the 2005 lease for the property, and copies of the claims under
the Incidental Expenses Provision which Mr Brown had made, together
with any related correspondence. I wrote to the Department of
Resources on 30 October.
44. The Director of Member Liaison Services responded
on 4 November.[21] He
enclosed an unsigned copy of the Kirkcaldy office sub-lease between
the insurance company and Mr Brown and Ms Livingstone; a copy
of an undated letter from Mr Brown and Ms Livingstone addressed
to the Treasurer of the Kirkcaldy and Cowdenbeath Labour Party
and three claim forms for reimbursement under the Incidental Expenses
Provision signed by Mr Brown, covering rent claims for the years
2005-06, 2006-07 and 2007-08.[22]
The Director confirmed that these forms showed that Mr Brown had
reduced his claims for payment in respect of this property by
£629.75 in the financial year 2005-06; by £1259.48 in
2006-07; and by £1259.49 in 2007-08. I noted that each of
the forms made clear that these sums had been deducted because
of rent received by the sub-tenant and two of the claims specifically
identified the payment as coming from the Labour party for rent
of the office.
45. Studying the sub-lease, I noted that the section
relating to rent included the following sub-clause:
"……..no rent shall be payable
for the period of three calendar months commencing with the Date
of Entry ("the Rent Free Period"). On the Date of Entry
the Sub-Tenant shall pay rent for the period of three calendar
months following the Rent Free Period."
46. I noted that also that Mr Brown and Ms Livingstone's
letter to the Treasurer of the Kirkcaldy and Cowdenbeath Labour
Party included the following statement:
"Payments commence on the 20 December 2005
allowing a rent free period for help with necessary work as outlined
in the mid-lease agreement."
47. I considered it necessary to check whether these
two apparent rent free periods had been reflected in the claims
which Mr Brown had made under the Incidental Expenses Provision.
Accordingly, I wrote to the Director of Member Liaison Services
on 11 November to ask, in respect of the rent free period granted
to Mr Brown and Ms Livingstone, whether the Department had given
any consideration to whether Mr Brown was receiving a benefit
as a result of it. I asked whether the Department had a copy of
the mid-lease agreement referred to in the letter to the Treasurer
of the Kirkcaldy and Cowdenbeath Labour Party and whether there
was any reflection in Mr Brown's claims of any rent free arrangement.
I asked also whether the Department had a record of the precise
date when Mr Brown began using his constituency office, and the
date when the accommodation began to be used by the constituency
Labour party.[23]
48. The Director of Member Liaison Services responded
on 13 November.[24] The
Director said that it appeared that no rent was payable by Mr
Brown and Ms Livingstone for the period of three months commencing
from the date of entry, 4 July 2005. On that date, however, they
were required to pay rent for the three months following that
rent free period. Mr Brown's claims were in accordance with these
provisions. The Department assumed that the practical effect of
the provisions would be that the final three months of the lease
would be rent free and that therefore there would be no claimable
expenditure at that time.
49. Turning to the letter to the Treasurer of the
Kirkcaldy and Cowdenbeath Constituency Labour Party, the Director
said that he had not seen the sub-under-lease agreement to which
the letter referred. He had no document described as a mid-lease
agreement. The Director said there was no evidence from Mr Brown's
claims that any allowance was made for any rent free period netted
off by any necessary works.
50. On the basis of this information, I wrote to
Mr Brown on 18 November about the two rent free periods (for himself
and for the constituency Labour party).[25]
I asked for confirmation that he took up occupancy of the offices
on 4 July 2005 and that the Kirkcaldy and Cowdenbeath Constituency
Labour Party took up its occupancy on 1 September of that year.
I asked him either to confirm that the three month rent free period
given to him in his sub-lease with the company would not accrue
to him until the final three month period of the lease, or to
explain how any initial three month rent free period was reflected
in the claims he made under the Incidental Expenses Provision.
I asked what consideration he had given to registering any benefit
in the Register of Members' Interests. In respect of the rent
free period apparently given to the constituency Labour party
from 1 September 2005 to 31 December, I asked to see a copy of
the mid-lease agreement and for information about the works carried
out and how far any benefit given to the Labour party had been
reflected in the claims he made under the Incidental Expenses
Provision.
51. Mr Brown's constituency manager responded with
his letter to me of 16 December.[26]
He enclosed with his letter copies of the sub-lease agreement
registered 1 August 2005 between the company and Mr Brown and
Ms Livingstone; the sub-under-lease agreement registered on 17
March 2006 between Mr Brown and Ms Livingstone and the Labour
Party; a claim form of 6 October 2005 which included claims for
work undertaken to the premises, and copies of some of the invoices.[27]
The sub-lease was the same as the unsigned lease sent to me by
the Director of Member Liaison Services on 4 November.[28]
It showed the rent payable (by the two Members) was £13,500
a year (£6,750 each) and that in addition they were to pay
rates and other outgoings and to contribute to common costs. No
rent was payable for the three months starting from the date of
entry, but on that date the Members were to pay rent for the three
calendar months following the rent free period.
52. The constituency manager noted that Mr Brown's
rent free period formed part of a commercial negotiation with
the landlords, and was designed to compensate the tenants for
those tenants' works being carried out which improved the accommodation
and therefore represented a benefit which would ultimately accrue
to the landlord. As part of the negotiations which led to a three
month rent free period, it was agreed that at entry, three months'
rent would be paid relating to the three month period following
the first three months of possession by the tenants. The tenants
had access from 4 July 2005 in order to carry out works to the
offices, however occupancy for use by the tenants was not possible
until September.
53. The constituency manager noted that during the
three month rent free period, works were conducted by the tenants
(shared equally) to a total value of £4229.87. Mr Brown's
half share in these costs was reclaimed against the Incidental
Expenses Provision. The works were, however in excess of the rental
costs for the three months in question. The tenants were currently
in credit with the landlord for the difference between the cost
of repairs and the rent. This would be picked up by way of an
adjustment in the rent to be paid to the landlord. There would,
therefore, be no need to register an interest.
54. Turning to the constituency Labour party, the
constituency manager noted that the rent free period was to be
passed on to reflect the work conducted to the shared office facility.
In the event, however, the sub-tenants, the constituency Labour
party, did not require access until after 1 September. As a result,
the sub-tenants paid rent in full for the period from September
to December 2005 and for subsequent quarters. The sub-tenants
did not, therefore, receive a rent free period of occupancy since
they moved into the building later than they had initially anticipated.
55. Having studied these papers, I wrote to the constituency
manager, copied to Mr Brown, on 23 December.[29]
I said that I would copy his letter to the Department of Resources
for any comment they wished to make but, subject to that, I took
from his letter that Mr Brown's rent for the period July to September
2005 was waived in exchange for payment for necessary works which
were then claimed from the IEP. The overpayment involved would
be taken into account in the rent paid to the landlords later
in the rental period. I noted also that it appeared that Mr Brown's
first rent payment, in respect of the period to December 2005,
was made in July 2005. Both this and the rent payments for subsequent
rental periods were claimed back from the IEP. I took it also
from the constituency manager's letter that there was no rent
free period granted to the Kirkcaldy and Cowdenbeath Labour Party
because in the event, the necessary works were carried out before
they took possession. The claims Mr Brown made against the IEP
did not need to reflect a rent free period for the Labour party
since none was granted. I asked the constituency manager to let
me know if this summary was inaccurate. He did not write to me
with any changes to it.
56. Having written to the Department of Resources
on 23 December, I received a brief reply from the Director on
7 January confirming that the letter of Mr Brown's constituency
manager of 16 December was entirely consonant with the facts as
they knew them and that my letter to the constituency manager
of 23 December also seemed to the Director to reflect a true understanding
of the position.
Findings of Fact
57. Mr Brown rented a constituency office in Kirkcaldy,
Fife under a joint lease with a Member of the Scottish Parliament
from 4 July 2005 until the end of March 2008. This was a second
office, in addition to Mr Brown's main constituency office in
Cowdenbeath, which he also rents. A second office was necessary
following boundary changes which created the constituency of Kirkcaldy
and Cowdenbeath for the May 2005 general election.
58. The building in which Mr Brown has his Kirkcaldy
office is owned by a registered company and three individuals
with no connections to the Labour party. That company leases the
property to an insurance and risk management company. In July
2005, that company sublet the property to Mr Brown and the Member
of the Scottish Parliament (MSP) for a joint rent of £13,500
per year plus rates and other charges. In September 2005 Mr Brown
and the MSP in turn jointly sublet part of the property to the
Kirkcaldy and Cowdenbeath Constituency Labour Party for a total
charge of £2,519 a year including rates and other charges.
Under this arrangement each Member was to be responsible for half
the cost of the lease of the full property and in turn each Member
would receive £1,259.49 a year, being half of the sum paid
by the constituency Labour party.
59. The claims made to the Fees Office for Mr Brown's
share of the cost of leasing this property were reduced by the
sums Mr Brown received from the constituency Labour party for
its use of part of the property (£1,259.49 a year). These
claims were made for the period from September 2005 until March
2008. The relevant claims forms made clear that the sum paid for
the rent of the office by their sub-under-tenant had been deducted
from the claims. The claim forms submitted for 2006-07 and 2007-08
made explicit that their sub-under-tenant was the Labour party.
60. Mr Brown took occupancy of his constituency office
in September 2005. The rental for the quarter beginning October
2005 was paid in July 2005, and rent was paid quarterly in advance
thereafter. The period from July to September was spent on undertaking
the works necessary to make the property fit for a constituency
office. The arrangement negotiated with the landlord was that
the equivalent of the rent for this period would be spent on these
works. In the event, the cost of the works was in excess of the
quarterly rent. Mr Brown claimed for his share of the cost of
that work against the Incidental Expenses Provision. The overpayment
of about £430 in respect of Mr Brown's share will be recouped
from the landlord later in the tenancy. No rent free period was
granted to the sub-under-tenants, the constituency Labour party.
61. The arrangements for drawing up the relevant
leases were undertaken by the MSP working with Mr Brown's constituency
manager. Mr Brown himself took no part in these arrangements,
other than to sign the leasing documents. The leases themselves
were drawn up by a solicitor independent of both Mr Brown and
the MSP and paid for by them. The appropriate level of rent to
be paid by the constituency Labour party, based on the office
plans of the building, was calculated by an independent surveyor
hired by Mr Brown and the MSP.
62. Under the rules applying to the Scottish Parliament,
there is no prohibition on subletting space in an office paid
for from Scottish parliamentary allowances. Those working on the
leases had thought the same rules applied in the United Kingdom
Parliament. They had not checked the Green Book on Parliamentary
Salaries, Allowances and Pensions. They were not aware, therefore,
that, from January 2002 Members had been strongly advised against
subletting accommodation which they leased and paid for out of
the allowances, or that from July 2004 there was a specific prohibition
on subletting such accommodation.
63. Mr Brown's office believed that they sent the
then Fees Office a copy of the Kirkcaldy office's lease, at their
request, in January 2006. Departmental files have no record of
having received a copy of this lease, but the Director of Operations
accepts that it could have gone astray. The Department contacted
Mr Brown's office in January 2007 to request a copy of the lease.
That was sent by Mr Brown's office and the lease was received
and filed in the Department's files.
64. Officials did not notice at the time that the
lease was in breach of the rules of the House in that it provided,
among other provisions, for a part of the property to be sublet
to the Labour party. Nor did the Fees Office or its successor
in the Department of Finance and Administration (now the Department
of Resources) question the statement in Mr Brown's forms which
identified that the sums claimed had been reduced by the annual
equivalent of £1,259.49 on account of rent received from
a sub-under-tenant, the Labour party. They might have done so
on the basis that the rules did not permit the subletting of offices
paid for from parliamentary allowances.
65. The problem with the lease was only identified
when Mr Brown's office contacted the Department of Resources in
December 2007 following an approach from a newspaper. In subsequent
discussion with the Department of Resources, Mr Brown's office
acted promptly to change the terms of the lease. From March 2008,
the arrangement is that the MSP, as sub-tenant, sublets the office
to both the constituency Labour party and to Mr Brown. The authorities
in the Scottish Parliament charge Mr Brown as sub-under-tenant
for his use of this space, the costs of which are met from Mr
Brown's allowances under the Incidental Expenses Provision. The
first quarterly payment under this new arrangement was made in
June 2008.
66. Mr Brown has received no financial benefit from
the previous arrangement under which the constituency Labour party
sublet office space from him and the MSP. This is because the
income he received was deducted from his claims for the cost of
his constituency office made under the Incidental Expenses Provision.
Mr Brown considers there was no requirement on him to register
the arrangement in the Register of Members' Interests since he
received no financial benefit. The Registrar of Members' Interests
confirmed Mr Brown's understanding of the position in respect
of the Register when his office spoke to her in February 2008.
67. The Director of Operations in the Department
of Resources considers that Mr Brown breached the Green Book rules
when he agreed to the sub-under-lease of his constituency office
in Kirkcaldy in September 2005, but that, following discussions
with the Department in December 2007, Mr Brown has now fully regularised
the position. He considers that no personal gain or gain by any
party was involved and that Mr Brown acted quickly to put matters
right. In his view, it was an inadvertent mistake.
68. Mr Brown acknowledges that the terms of his arrangements
for sub-leasing of his Kirkcaldy constituency office from September
2005 to March 2008, shared with his local MSP, and consistent
with the rules of the Scottish Parliament, inadvertently breached
the rules of the House. He apologises for this. As soon as the
issue was identified, he moved to regularise the position. He
has explained that, in 25 years as an MP, he has always protected
public funds and the arrangement made no call on public funds
and had no financial benefit to him.
Conclusions
69. On the basis of the evidence I have received,
I conclude that Mr Brown was inadvertently in breach of the rules
of the House of Commons when he signed off arrangements made on
his behalf to sublet from September 2005 to the Kirkcaldy and
Cowdenbeath Constituency Labour Party part of the office building
he, together with an MSP, leased in Kirkcaldy, and then made claims
for the cost of his share of the lease (reduced by the income
from this subletting) on the House of Commons Incidental Expenses
Provision. This is because since July 2004 Members have not been
permitted to sublet accommodation which they lease and pay for
out of their parliamentary allowances. I therefore uphold this
part of the complaint.
70. I have accepted that this breach was inadvertent.
Mr Brown has apologised for it. It was caused by those working
on the relevant lease not recognising that the rules of the House
of Commons were not the same as those of the Scottish Parliament.
This was unfortunate, but in my view understandable, since the
two sets of rules often follow the same course (although they
did not in this respect).
71. It was equally unfortunate that the error took
nearly three years to be identified. It is commendable that the
then Department of Finance and Administration asked to see Members'
leases and conducted this exercise early in the current Parliament.
It is regrettable, however, that there is no record of them having
logged the lease which I accept Mr Brown's office sent them in
January 2006. Had it been logged and the error identified then,
I am satisfied that Mr Brown would have ensured that immediate
action would have been taken to have brought the lease within
the rules of the House. It is equally regrettable that, while
the then Department of Finance and Administration was again commendable
in asking for—and filing—a copy of the lease in January
2007, the error it contained in permitting a sub-lease was not
spotted by officials at that time. It was unfortunate that the
claims for the costs to Mr Brown of leasing his Kirkcaldy constituency
office, which clearly noted and offset the income received from
the sub-lease to the constituency Labour party, were not at any
time questioned by staff in the Department of Resources.
72. As a result, the situation only came to light
following an approach to Mr Brown's office from a newspaper in
late 2007. Following that, Mr Brown's office acted quickly in
working with the Department of Resources and the Scottish authorities
to rectify the situation. I am satisfied that the situation has
indeed now been rectified and that the arrangements are fully
compliant with the rules of the House.
73. I am satisfied too that Mr Brown has received
no financial benefit from the arrangement at any time from when
it was instituted in September 2005. He has subtracted the full
sum received from the constituency Labour party in making his
claims to the House authorities under the Incidental Expenses
Provision, and he has given the Constituency Labour party no financial
benefit in their occupation of the premises. I am satisfied too
that he, his staff and the MSP concerned ensured through their
use of an independent legal adviser and independent assessors
that the rent charged to the Kirkcaldy and Cowdenbeath Constituency
Labour Party fully reflected the market rates for the space they
occupied.
74. Since Mr Brown received no financial benefit
from this arrangement, as the income was offset against his claims
on the Incidental Expenses Provision, there was no benefit for
him to register in the Register of Members' Interests. I conclude
that there was no breach of the rules by Mr Brown in relation
to the Register of Members' Interests. I, therefore, dismiss this
part of the complaint.
75. Overall, therefore, I am satisfied that Mr Brown's
subletting of the constituency office was an inadvertent breach
of the rules. It brought no financial benefit to Mr Brown, and
once it was identified, Mr Brown moved quickly and effectively
to rectify the situation.
76. Mr Brown has suggested that the reference to
the prohibition on subletting in paragraph 5.12.7 of the Green
Book could be more clearly drafted. I do not believe this affected
the particular circumstances of this case since the evidence is
that the Green Book was not consulted when the leasing arrangement
was drawn up in 2005. In any event, the July 2006 Green Book will
shortly be superseded by a new version which has been approved
by the House and which includes a prohibition on sub-letting in
similar terms to paragraph 5.12.7.
77. There are some lessons which might be drawn from
this complaint:
a) Members of Parliaments and Assemblies in the
United Kingdom should not assume that the rules are identical
in each institution. Where a Member of the United Kingdom Parliament
uses accommodation, facilities or services in conjunction with
a Member of those other institutions, they should be particularly
careful to check that the arrangements they are making are consistent
with the rules of the House of Commons;
b) the House authorities may wish to renew their
efforts to ensure that they are able to support Members by checking
carefully against the rules the documents and statements which
they receive from Members, particularly where they have asked
that they should be sent to them.
12 February 2009 John Lyon CB
4 WE 1 Back
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9
Mr Brown had previously represented the constituency of Dunfermline
East. Back
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Not included in the schedule of evidence Back
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Not included in the schedule of evidence Back
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