Lay membership of the Committee on Standards and Privileges
Memorandum submitted by Dr Malcolm Jack, Clerk of the House, House of Commons
(P 103, 2010-11)
Introduction
1.
The Procedure Committee has invited written submissions to its inquiry into the privilege implications and practical considerations of lay membership of the Committee on Standards and Privileges, including the structure of the Committee, the participation of non-Members in select committee meetings and decisions, the number of lay members and the quorum, the appointments process for the lay members and other relevant matters; and to make recommendations.
2.
On 2 December 2010 the House agreed with the principle as set out in the Twelfth Report from the Committee on Standards in Public Life (CSPL) that lay members should sit on the Committee on Standards and Privileges; and invited the Procedure Committee to bring forward proposals to implement it. I understand the policy consideration leading to this proposal, namely that external members can bring to the Committee a different perspective in the way that external members of professional organisations do in similar deliberations of bodies concerned with ethics and standards.
3.
I shall tackle the various limbs of the inquiry (set out in paragraph 1 above) in turn.
Privilege implications of lay membership
4.
The proceedings of the Committee on Standards and Privileges, like those of other Committees of the House, are protected by parliamentary privilege. The principle of the freedom of speech enshrined in Article IX of the Bill of Rights 1689 applies to the proceedings of the Committee, as to proceedings in the Chamber. Other aspects of privilege, including the exclusive regulation of its internal affairs, come within the exclusive cognisance of the House and devolve to the Committee as they do to other Committees of the House. This means that the Committee’s decisions and conduct of its affairs cannot be challenged outside Parliament, nor can any aggrieved party go to law in order to overturn the Committee’s findings.
5.
There is a risk that the addition of lay members to a committee would alter its character to such an extent as to cast doubt on whether its proceedings were actually proceedings in Parliament protected by Parliamentary privilege. At present, the only non-Members participating in Committee meetings are witnesses, staff of the House and specialist advisers, but they do not have their views formally recorded nor have they any role in proceedings such as voting. However, these participants are protected by parliamentary privilege.
6.
An important principle that needs to be borne in mind is the long-held understanding that it is for the Courts to determine the scope of privilege. This principle has recently been restated by the Attorney General in a memorandum to the House on the role of the Courts and the House of Commons. The Attorney General emphasized the importance of comity between the role of the Courts and Parliament, concluding that "it is the role of the courts to determine the law relating to parliamentary privilege (especially in relation to Article IX). This view that the extent of parliamentary privilege is ultimately a matter for the Court has recently been upheld in the Supreme Court although its President has said that the views of Parliament would be taken into account.
7.
Three further considerations are relevant. Firstly, in 1705, it was agreed that "neither House of Parliament hath power, by any Vote or Declaration, to create to themselves any new Privilege, that is not warranted by the known Laws and Customs of Parliament". Declaring a Committee comprising partly Members of Parliament and partly lay members as a Committee of the House of Commons, to be covered by the usual norms of parliamentary privilege, could be regarded as the assertion of a new privilege.
8.
Secondly, the courts might question whether the House had the power to make provision for a subsidiary body to do something it could not do for itself: and the House surely lacks the power to decide by a majority to co-opt unelected Members with full voting rights. Indeed in another area, the House itself makes a distinction between bodies which are composed entirely of Members (All-Party Groups) and those which have non-Members (Associate Parliamentary Groups).
9.
Finally, any attempt to legislate on the matter would be an invitation to the Courts to decide whether and to what extent a particular case fell under the expressed legislative provision.
Freedom of Information and Data Protection
10.
One practical application of parliamentary privilege is in relation to freedom of information. One of the available exemptions from the duties under the Freedom of Information Act 2000 to disclose information is where an exemption is required in order to avoid an infringement of the privileges of either House of Parliament. This is an absolute exemption and the public interest test under the Act does not apply. The Speaker of the House of Commons (or the Clerk of the Parliaments for requests affecting the House of Lords) may sign a certificate as conclusive evidence of the fact that such an exemption is required. As intended by the legislation, such certificates have never been challenged by the Information Commissioner nor in any tribunal or court. That does not mean, however, that certificates are unimpeachable in all conceivable circumstances: and the addition of laymen to a select committee might possibly give grounds for arguing that the parliamentary privileges exemption did not apply to a body which was not wholly parliamentary in nature. It may still be perfectly possible for a Standards Committee to operate effectively without it relying on a FOIA section 34 (parliamentary privilege) exemption. Other available exemptions might include (where necessary) legal professional privilege, investigations, personal information and information intended for future publication - but such exemptions are reviewable by the Information Commissioner and some are subject to the public interest test.
11.
The Freedom of Information Act 2000 made certain amendments to the Data Protection Act 1998 in relation to parliamentary privilege. The applicability of data protection principles could be highly relevant to the work of a Standards Committee. Unlike the Freedom of Information Act, there is no provision under the Data Protection Act (even as amended) for the Speaker to issue a certificate as conclusive evidence of fact that, for example, the processing of certain personal data is required for the exercise of any function of the House of Commons.
Practical considerations: a way forward
12.
I turn to consider how a way might be found to secure the advantages that would derive from the addition of lay members without running the risk of losing the independence from the courts that the House’s self-regulatory system currently enjoys.
13.
I understand that the proposal that the lay members should be voting members rests on the desire to ensure that the lay members play a full part in the Committee’s proceedings and that their views should not be lightly cast aside or over-ridden by the Members on the Committee.
14.
Both of these aims can be achieved without violating parliamentary norms. First, it should be a condition of the quorum, or a standing instruction to the committee, that the Committee may not meet at all unless there is present at least one of the lay persons to be appointed by the House. Secondly, it should be a standing instruction to the committee that any report to the House should include a statement of the opinion of each of the lay persons on the Committee’s conclusions.
15.
By having these provisions set out in the Standing Orders of the House, I am suggesting that the lay members would have every chance to participate in the Committee’s proceedings, including the questioning of witnesses and the informal consideration of reports. What they would not be able to do would be to move amendments or have a formal vote recorded but that would not, in my view, undermine their effectiveness since they would be participating in consideration of reports.
16.
It would therefore be for the Committee to take a decision on a standards matter with the full participation of lay members in its deliberations; and the views of the lay persons present at the Committee’s deliberations would be laid bare and published for all to see. While the actual decision of the Committee would remain in the hands of the elected members, in effect that would be the case anyway -unless the number of the voting lay members outnumbered the elected Members on the Committee.
17.
Neither of the standing instructions should apply to cases of privilege referred to the Committee, for as long as the present combined standards and privilege remit is maintained.
The structure of the Committee: splitting standards from privileges
18.
My main proposal on the structure of the system is that the House should revert to its time-honoured practice of having a distinct, separate and senior Committee of Privileges, to meet on the relatively infrequent occasions that the House refers matters to it. The task of the Committee of Privileges is, in the main, to investigate apparent contempts that have been committed against the House and to decide what action, if any, ought to the taken to punish any such as contempt or other breaches of privilege. Such a Committee should comprise Members only, as it is my firm view that the exclusive control which the House has of its own proceedings means that privilege questions should be for Members alone to consider.
19.
I would not recommend the use of two Sub-Committees of a continuing Standards and Privileges Committee, one to deal with standards matters and the other to deal with privilege. The arrangement would be more complicated; a means would have to be found to prevent the decision of a Sub-Committee ever being overruled by a Member majority on the main committee; and there is much to be said for a clear Member and public perception that standards matters will be dealt with separately from privilege matters.
20.
One consequence of dividing the remit of the existing Standards and Privileges Committee would be that the Speaker would have to determine, in accordance with section 12 (2) and (4) of the Parliamentary Standards Act 2009, who should replace the Chair of the Standards and Privileges Committee as an ex officio member of the Speaker’s Committee on the Independent Parliamentary Standards Authority.
The number of lay members
21.
In order to allow for continuity and transmission of the Committee’s ethos as it develops over time, it would be desirable to stage the turnover of lay members. In the first instance, their terms of appointment might be of different lengths, moving towards a cycle of periodic replacement of lay members one at a time as their term of appointment came to an end. In the case of the Speaker’s Committee on IPSA, the Speaker determined that the duration of the three appointments of lay members should be staggered in order to provide continuity for the Committee. Accordingly, the motion approved by the House reflected the outcome of the recruitment competition, in nominating one person for five years, another for four years and a third for three years.
22.
It would be desirable to have a single non-renewable term, as for the Parliamentary Commissioner for Standards, to make quite clear that the lay members had no interest in currying favour or cultivating the support of anybody - and, equally, to demonstrate that they had nothing to fear from incurring the odium of unpopularity from any quarter.
23.
With a move towards fixed-term Parliaments of five years, the House might decide on a fixed single non-renewable term, in the range from, say, three to seven years.
Quorum
24.
As I have already pointed out (see paragraph 14 above) it would be essential to make provision that the Committee could not operate without its lay members. So a prudent quorum requirement would be that at least one lay member should be present. It may also be considered desirable to provide that that the lay members should not be allowed to dominate proceedings and that therefore the quorum should be double the number of lay members, plus one. Alternatively, a less onerous provision might be that the quorum should be one greater than the number of lay members, so that the lay members could not constitute a quorum by themselves.
The appointments process for the lay members
25.
We have some experience of appointing lay members, in relation to the statutory Speaker’s Committee for IPSA. In that case, the recruitment competition required by the statute was conducted at the Speaker’s request by a Board chaired by the Clerk Assistant with independent members appointed to it. The Board was assisted by a specialist recruitment agency, who were employed following a tender exercise in July 2010. The recruitment process involved stages of advertisement, long-listing, short-listing and interview. Following final interviews the Speaker met four candidates recommended by the Board, from whom he made his selection of the three persons named in the motion approved by the House on 26 January 2011.
26.
The House will have to decide what it requires in terms of the character and calibre of lay members of a Standards Committee, and in order to do that there will have to be clarity about what the purpose of the lay members is. If they are to be experts in due process, then a legal or judicial background is indicated. A harder task would be to recruit individuals who commanded public confidence to such an extent that they could refute the ill-founded but nevertheless deeply ingrained suspicion, in the media and elsewhere, of Members and their motives. The Procedure Committee may think that qualifications and calibre of the lay members of the Speaker’s Committee on IPSA might be a useful comparator.
27.
One of the pitfalls in expecting lay members to act as tribunes of the people, or in some way to guarantee the integrity that what goes on behind the closed doors of the Committee room in investigating complaints, is the risk that the lay members will be expected to "blow the whistle" by disclosing the private deliberations of the Committee. Although Committees are in fact quite transparent in the way they publish their reports and their formal minutes, it would be deeply damaging to their capacity to operate at all if every remark made in a conversation at private meeting was liable to be relayed to the press. It ought to be made clear to the lay members that any premature or unauthorised disclosure of Committee proceedings may be found to be a contempt of Parliament.
Other relevant matters
28.
Lay members need to be properly equipped to do their work, but they should keep an appropriate distance. I would suggest that lay members should be issued with full photo-passes allowing them unfettered access to the parliamentary precincts. Subject to the Procedure Committee’s recommendations and the decisions of the House on them, I would suggest that the lay members would not require office space of their own on the parliamentary estate nor would we need to supply them with any computers or other ICT equipment.
29.
The Parliamentary Standards Act 2009 requires the Speaker to prescribe the remuneration of lay members of the Speaker’s Committee on IPSA, which he has set at £300 a day. This was set at the lower end of a number of public sector comparators, and is comparable to the scale of honoraria for specialist advisers to select committees with a current top rate of £280 a day. There would also be reasonable travel and subsistence expenses.
30.
I have a particular responsibility as Chief Executive of the House of Commons Service to keep any eye on cost pressures in the context of an overall reduction in spending of 17% over the lifetime of this Parliament. The recruitment and remuneration of lay members of the Standards Committee will involve some additional expenditure. I think this is likely to be modest but I mention it for the sake of completeness.
Conclusion
31.
The House has endorsed the principle of adding lay members to its Standards and Privileges Committee. I hope to have indicated in this paper how such members could participate in the proceedings of a Standards Committee, separated from a Committee of Privileges, without raising problems in the area of parliamentary privilege.
Dr Malcolm Jack
March 2011
|
