Lay membership of the Committee on Standards and Privileges

Memorandum submitted by Sir Philip Mawer,

former Parliamentary Commissioner for Standards (P 100, 2010-11)

1. I am grateful for the Procedure Committee’s invitation to make a written submission to its inquiry into lay membership of the Committee on Standards and Privileges. In responding to this invitation, I am conscious that it is now over three years since I stepped down as the Parliamentary Commissioner for Standards and that much has happened since. I shall therefore keep my comments brief.

2. The submission I make is entirely personal. It in no way relates to my role as the Prime Minister’s Independent Adviser on Ministers’ Interests.

Lay Membership of the Committee on Standards and Privileges

3. The House has, as I understand it, expressed its support in principle for the proposal that lay members should join the Standards and Privileges Committee. The focus of the Procedure Committee’s inquiry is on the practical implications of such a step. In accepting in principle the recommendation (originally made in the Twelfth Report of the Committee on Standards in Public Life) that lay members should be included in the Committee, the House wishes to enhance public confidence in the process for adjudicating on reports by the Parliamentary Commissioner for Standards about complaints investigated by him.

4. If this objective is to be achieved, it is important that the number of lay members; their status and powers within the Committee; the process leading up to their appointment; and the terms of their appointment should be such as to carry credibility with the public. The House’s objective will not be met if their presence on the Committee is perceived as merely token.

Standards, not Privileges

5. The focus of the original recommendation by the Committee on Standards in Public Life was on lay involvement in the Committee on Standards and Privileges’ role in relation to disciplinary proceedings arising from alleged breaches of the House’s Code of Conduct. It was not concerned with the Committee’s role in considering matters of Parliamentary privilege.

6. The Report by the Committee on Standards and Privileges on "Implementing the Twelfth Report from the Committee on Standards in Public Life" (2nd Report of Session 2009-10, HC67) commented:

"Privilege must remain a matter for the House and its Members. We suggest that a clear distinction will need to be drawn between matters relating to privilege and the other work of the Committee, once the lay members have been appointed."

7. I respectfully agree with that observation. Lay members should not be involved in the privilege aspects of the Committee’s work, just as the Commissioner is not currently involved in that aspect of the Committee’s remit. Whether that separation is achieved by the creation of two different committees or the establishment of a separate Privileges sub-committee consisting of the ten elected Members of the current Committee is a matter for the House to determine. I believe there is advantage in the same ten elected Members continuing to consider both standards and privileges matters, but whether they look at privileges as members of a Privileges sub-committee of a combined Standards and Privileges Committee or when sitting as members of a separate Privileges Committee of the House is not a point I judge to be of great importance. If I had to decide the issue, I would probably favour creating a separate Privileges Committee, for the sake of clarity and in order to minimise the scope for confusion.

The Role of the Lay Members in relation to Standards

8. Consideration so far of the role and status of lay members has tended to focus on the part they will play in the consideration of individual cases. It should not be overlooked that they will have an equally important role in bringing an external perspective to bear on the operation of the House’s disciplinary arrangements as a whole, and in helping the Committee on Standards and Privileges determine how, on the basis of the advice it receives from the Commissioner, it should in turn advise the House on the modification or improvement of those arrangements. In my view, it is as important to bear this broader function in mind as it is other aspects of their role in deciding what is the appropriate way in which to frame the powers and status of lay members.

The Number of Lay Members and the Quorum of the Committee

9. The Committee on Standards in Public Life recommended that at least two lay members should be appointed to the Committee on Standards and Privileges. The recommendation in the latter Committee’s Second Report of 2009-10 was for the appointment of two lay members in addition to the ten elected members. The Committee further recommended that the quorum of the reconstituted Standards and Privileges Committee should in future consist of five elected and one lay member.

10. These recommendations represent, in my view, the minimum the House should contemplate if it wishes to secure public confidence in any new arrangement. I recognise that there are a number of balances to be struck. There is a need to avoid token action on the one hand and to ensure Members’ continued confidence in the House’s adjudicatory procedures on the other. There is a need to ensure that the number of lay members appointed achieves a certain critical mass (so as not to leave any lay member sitting alone isolated and exposed to pressure) whilst not enlarging the Committee so much as to render it ineffective.

11. Considerations to do with ensuring public confidence in the new arrangements and an adequate attendance of lay members at meetings lead me to tend to favour the appointment of three (rather than two) lay members plus ten elected members to the Committee, with the quorum being seven of whom two should be lay. This would take the overall size of the Committee to 13 and mean that no case would be capable of being decided at a meeting attended by less than a majority of all members of the Committee (a step which I would have hoped Members would favour). However, I feel less strongly about the number of lay members appointed to the Committee than I do about their status and powers, and to that I now turn.

The Status and Powers of Lay Members

12. If the House’s objective of enhancing public confidence in the disciplinary process is to be achieved, I believe it desirable that lay members should have the same status within the Committee as elected members (including voting rights). I note the concern of the Clerk of the House that the direct participation of lay persons in the taking of decisions by a Committee of the House may not be covered by privilege, and of course I defer to the Clerk as the House’s principal adviser on these matters. I would simply offer the following observations:

a) On my understanding, privilege attaches to the House itself, and only in consequence to its elected Members when undertaking their Parliamentary duties.

b) Privilege may also attach to officers and other servants of the House when carrying out duties on the House’s behalf.

c) Once the Commissioner has decided to accept a complaint against a Member for inquiry, all stages of the consideration of the complaint form part of a proceeding in Parliament. (It is for this reason that an investigation by the Commissioner is regarded as privileged.)

d) If the House decides that lay members should form part of its disciplinary process, I do not immediately understand why they should not similarly be covered by Parliamentary privilege.

13. I would add that whilst no one can foresee what view the courts might take on the matter, it would be curious to say the least if the courts were to mount an attack on the House’s privileges in consequence of a development (the inclusion in the Committee of lay members) intended to strengthen, not weaken public confidence in the fairness and impartiality of this aspect of the House’s proceedings.

14. I also note that the Government’s intention to introduce a Privileges Bill will provide an opportunity to put this matter beyond doubt.

15. I believe that the question of the status and powers of lay members of the Committee is crucial because it would be unwise to be seen to develop an arrangement in which there were first and second class members of the Committee. I note that, if it is decided to withhold voting rights from the lay members, it will still be necessary to define their rights in other respects. Whilst, happily and rightly, the Committee on Standards and Privileges in my experience avoids divisive debates and votes wherever possible, they will occur from time to time, perhaps in relation to the most difficult and contentious of cases. What will the position be of lay members in relation to such matters as speaking in Committee, tabling motions and amendments, and appending minority reports to Committee documents (should they wish to do so, if they find their views seriously at odds with the elected majority)? Conventions will need to be clearly established on these matters if public confidence is to be maintained and if people of the necessary skills and abilities are to be willing to undertake the demanding and responsible duties involved. Far better, in my submission, to avoid all this and simply to accept that – in this narrow and limited instance and because the House judges it to be in the overall interests of the public as well as of the House itself – lay members will have the same rights and responsibilities as elected Members on the Committee.

The Appointment of Lay Members

16. The Committee on Standards in Public Life recommended that the lay members of the Committee should be "chosen through the official public appointments process". As Members of the House have subsequently noted, it is not altogether clear what that phrase means.

17. The key consideration, I suggest, should be that the process of appointment is one which carries the confidence of both the public and the House. That means that it should observe the procedural principles established by the Commissioner for Public Appointments, should involve some independent element, and the final decision should be taken by the House.

18. The Parliamentary Commissioner for Standards is appointed by a process of advertising; selection by the House of Commons Commission (with the full involvement of the Chairman of the Committee on Standards and Privileges and of the Office of the Commissioner for Public Appointments); and confirmation by the House. I suggest that a similar process might be adopted in respect of lay members of the Committee. This would have the advantage of ensuring that, under the authority of the House, the same body was responsible for making all lay appointments connected with the House’s disciplinary arrangements.

Qualifications of Lay Members

19. It will be important to establish those qualities the House will be seeking when making appointments to the Committee. I would identify the following as particularly important:

a) An understanding, and appreciation of the value of the role undertaken by elected Members and of the particular context in which they work (although candidates should not formerly have been Members of the House);

b) The capacity to sift complex evidence and to reach a reasoned judgement on it, not being swayed by press comment or by other pressure;

c) Resilience

d) A readiness to work with others and accept the disciplines of working as a member of a Parliamentary committee;

e) Availability – an ability to respond quickly as the needs of the Committee and the House may require.

In addition, knowledge of disciplinary arrangements in other walks of life may also be desirable.

20. In my view, lay members should be appointed on the firm understanding that they will express their views as members of and within the Committee, not, in all normal circumstances, outside it.

21. I see that, in the debate in the House on 2 December 2010, reference was made to the possible attraction of appointing a retired judge as one of the lay members of the Committee. While I acknowledge the potential value of having members on the Committee who are familiar with the requirements of due process, I would counsel caution before taking any steps which might judicialise the proceedings in the Committee or make them overly legalistic in character.

22. Whoever is appointed to the Committee and whatever their background, it is essential that they be given an effective induction into their role.

Term of Appointment

23. I suggest that the term of appointment of lay members should be five years. It would be for the House to decide whether this should coincide with the fixed lifetime of a Parliament or bridge that of two Parliaments. On the grounds of continuity (avoiding a complete change in the Committee’s membership at the same point) and in order to simplify the process of appointment, there would be something to be said for the latter. It may also be sensible to stagger the lay appointments so as to avoid them all falling due at once. The appointment should not, I suggest be capable of renewal.

Termination of Appointment

24. The premature termination of an appointment should only be possible by a Resolution of the Whole House, on a report by the House of Commons Commission, following advice from the Committee on Standards and Privileges, and a motion moved for by a member of the Commission. It would not seem appropriate for such a motion to be moved for by a member of the Committee on Standards and Privileges itself, as any such motion should, I suggest, in view of its gravity, be seen to have the endorsement of the Commission (and the Commission, I have already suggested, should have played a crucial role in recommending the appointment of someone as a lay member to the House).

25. I hope that these observations and suggestions will be of assistance to the Committee in deciding how it should report to the House.

March 2011