House of Commons - Mr Andrew Mackay and Ms Julie Kirkbride

Mr Andrew Mackay and Ms Julie Kirkbride - Standards and Privileges Committee Contents

Mr Andrew Mackay and Ms Julie Kirkbride

Introduction

1. Mr Andrew Mackay was the Member of Parliament for Berkshire East and then Bracknell from 1983 to 2010. His wife, Ms Julie Kirkbride, was the Member for Bromsgrove from 1997 to 2010. They had homes in Bromsgrove and in London. For Parliamentary allowance purposes, the Bromsgrove property was Mr Mackay's declared main home and Ms Kirkbride's second home; the London property was Ms Kirkbride's declared main home and Mr Mackay's second home.

2. In October 2009, the Parliamentary Commissioner for Standards received a complaint from Mr Michael Goggins, a constituent of Ms Kirkbride, about the Additional Costs Allowance (ACA) claims made by both Ms Kirkbride and Mr Mackay. The complaint against Mr Mackay was that he had wrongly identified the Bromsgrove property as his main home for the purposes of making ACA claims. The complaint against Ms Kirkbride was that she had wrongly claimed against ACA for the cost of building an extension to the same property.

3. The Commissioner has produced a single memorandum reporting on his investigation into the complaints against both Mr Mackay and Ms Kirkbride. This is published at Appendix 1 to our Report. Mr Mackay submitted written evidence, which may be found at Appendix 2.

The Commissioner's inquiry

4. The Commissioner identifies two issues for him to resolve, as follows:

whether Mr Mackay was acting within the rules of the House in identifying as his main home the Bromsgrove property he shared with his wife and fellow Member of Parliament, Ms Julie Kirkbride, when he knew that she had identified that home as her second home and would claim parliamentary allowances on it.[1]

and,

whether Ms Kirkbride was within the rules of the House in claiming interest on the increased mortgage she took out in order to build an additional bedroom in her home in Bromsgrove when it was used by her brother principally to assist her with childcare and when no allowance was made by her for the cost of his use of the property.[2]

5. The Commissioner explains that, while he has considered the complaints against Mr Mackay and that against Ms Kirkbride separately and on their own merits, the two are linked, since, if Mr Mackay were within the rules in identifying the property in Bromsgrove as his main home, then he would need to consider whether Ms Kirkbride was within the rules in claiming for the interest on an additional mortgage to fund the cost of building works at what was, in fact, her husband's main home.[3]

6. Both Mr Mackay and Ms Kirkbride argued that the Commissioner should not pursue the complaint, since to do so would put them in triple jeopardy, following the audit of Members' allowance claims by Sir Thomas Legg and the subsequent appeals process carried out by Sir Paul Kennedy.[4]

7. Mr Mackay was judged by Sir Thomas Legg's audit of Members' ACA claims to have over-claimed in the period 2004-05 to 2008-09.[5] Sir Thomas made the same finding in respect of Ms Kirkbride. Sir Thomas concluded that Mr Mackay and Ms Kirkbride jointly obtained a financial benefit by the designation of their main and second homes. He suggested that, had they made different designations, they might each have reasonably claimed up to two-thirds of the full allowance on a shared home. He therefore recommended that each repay one third of the sums they had claimed, £29,243.

8. In dismissing Mr Mackay's and Ms Kirkbride's appeals against the finding of Sir Thomas Legg, Sir Paul Kennedy wrote that Sir Thomas's suggestion that Mr Mackay and Ms Kirkbride could reasonably have claimed up to two thirds of the full allowance was, if anything, generous. Sir Paul did not, however, have any power to increase the recommended repayment and Mr Mackay and Ms Kirkbride each repaid £29,243.

9. The Commissioner considers that, given the seriousness of the allegations, it was right that he should inquire into, and that the House of Commons should have an opportunity to decide on, whether two of its former Members (although they were Members at the time) breached the rules of the House and, if so, whether they should face Parliamentary sanction for their conduct.[6] We agree with the Commissioner's decision.

THE COMMISSIONER'S FINDINGS: MR ANDREW MACKAY

10. The Commissioner's memorandum shows that Mr Mackay claimed against his ACA for the full mortgage interest and other costs of his London home from 1997 onwards. In the five years from 2004-05 to 2008-09, he claimed and was paid for his mortgage interest a total of £49,230.[7] His total claims against ACA during this period came to more than £100,000.[8] Information for earlier years is no longer available.[9]

11. Mr Mackay's evidence to the Commissioner was that in or around September 1997, shortly after he had married Ms Kirkbride, he held a discussion with the then Head of the Fees Office, who told Mr Mackay that he and his wife could each choose which property to nominate as their main home and which as their second home. Mr Mackay told the Commissioner that the former Head recommended that Mr Mackay should designate the Bromsgrove property as his main home and claim ACA on the London property and that Ms Kirkbride should designate their London property as her main home. The former Head of the Fees Office told the Commissioner that, while he did not recall what advice he gave, he did not accept that he would have given the advice which Mr Mackay has suggested he gave.[10]

12. The Commissioner has been unable definitively to resolve this conflict of evidence. Having weighed the evidence, he concludes that—whatever advice the former Head of the Fees Office believes that he gave—Mr Mackay believed, in 1997 and subsequently, that he (and his wife) were acting on the advice they had received from that official in the way they each designated their two homes. He also accepts that Mr Mackay did not at any stage seek to disguise this arrangement.[11]

13. The Department of Resources has been unable to discover any records which would cast light on Mr Mackay's discussions with the Fees Office in 1997.[12] It accepts, however, that it would have been aware—certainly at a senior level—that Mr Mackay and Ms Kirkbride were married, but that it did not question the arrangement by which they funded both their homes from Parliamentary allowances. The Department also accepts that it was reasonable for Mr Mackay to have inferred from this that the Department had no difficulty with the arrangement.[13] The Department has expressed regret that its original advice, and its subsequent inaction, might have given Mr Mackay comfort in his claims.

14. The Commissioner accepts that, because the rules in 1997 did not seek to define a Member's main home, Mr Mackay had a choice in the designation of his main home.[14] However, he points out that if Mr Mackay had designated the London property as his main home, he could not have claimed ACA for the Bromsgrove property, because it was too far away from his constituency.[15]

15. Mr Mackay has defended the designation of the Bromsgrove property as his main home on a number of grounds: he was acting on advice from the then Head of the Fees Office; he spent more nights there than in London; and he had close links to, and significant family responsibilities in, the Bromsgrove area.[16] He told the Commissioner that in his opinion the designation of his main and second homes was fully within the letter and spirit of the rules of the House.[17]

16. From June 2003, the rules relating to ACA were amended, to provide that the identification of a Member's main home was normally a matter of fact, but where a Member had more than one home, their main home was normally the one where they spent more nights than anywhere else.[18] Mr Mackay does not have full records of his overnight stays, but has estimated—and the Commissioner has accepted—that he spent marginally more nights in his main home (Bromsgrove) than in his second home (London).[19] In accepting Mr Mackay's estimate, the Commissioner points out that a small variation in the pattern of overnight stays could have produced a contrary result.[20] He therefore considers that Mr Mackay should have taken account of other factors in reaching his decision.

17. Turning to those other factors, the Commissioner points out that Mr Mackay was living with his wife as a married couple and that, from 2000, they were bringing up their child, who was to start at school in London. Ms Kirkbride regarded the London home as her main home. The Commissioner's view is that the pattern of their use of the two properties and the pattern of their lives does not sustain the argument that they lived separate lives with substantively different usage of each property. He finds it difficult to accept that Mr Mackay needed to maintain a main home in Bromsgrove in order to deal with family business or the affairs of his elderly relatives or to give much weight to Mr Mackay's childhood links to the Bromsgrove area. The Commissioner concludes:

As an established couple living together, in my judgement the right course would have been for them to have decided together which was their main home and which their second home. I consider that the evidence suggests that the London property was Mr Mackay's main home, as it was Ms Kirkbride's, and that he was straining any reasonable interpretation of the rules to suggest otherwise. [21]

The Commissioner thus upholds the complaint against Mr Mackay.

18. The Commissioner has thought it right to reach a separate view on whether Mr Mackay's decision to make claims for his London home could be held to be above reproach—a requirement set out in successive editions of the Green Book, in line with paragraph 15 of the Code of Conduct. He has done this in case we were to disagree with his conclusion that Mr Mackay had wrongly identified the Bromsgrove property as his main home.[22] His conclusion is that Mr Mackay's decisions meant that his claims were not above reproach, because:

Mr Mackay should have recognised that it was not right, or defensible, to come to an arrangement which he knew would mean that parliamentary allowances would be used to cover costs incurred on both his homes. That was, in my judgement, clearly the wrong thing to do. The simple fact is that Mr Mackay's claims meant that, with his wife, he had ensured that parliamentary allowances subsidised both of his homes. That was not the purpose of the allowance. It was not in the spirit of the Green Book. And it meant that his claims were not above reproach.

19. In the Commissioner's view, Mr Mackay's breach of the rules was founded on "a serious misjudgement which was sustained over more than 12 years."[23] He considers that "it is not acceptable to argue, as Mr Mackay has sought to argue, that he was only acting on the advice of the top official in the Fees Office."[24] Although the Fees Office did not question Mr Mackay's arrangements, the Commissioner's view is that it was unwise of Mr Mackay to assume that silence meant well-considered consent.

20. The Commissioner does not think it proportionate to find against Mr Mackay or Ms Kirkbride for failing to register formally with the Fees Office the fact that they shared the two properties. He points out that their arrangements should have been well known to officials, since they made no secret of their designation in their nominations or, since 2003, their individual claims forms.[25] He also describes as "perhaps understandable" Mr Mackay's failure to review his initial decision until it came to light in 2009, although he also describes this failure as unwise.[26]

THE COMMISSIONER'S FINDINGS: MS JULIE KIRKBRIDE

21. The Commissioner points out that he received no complaint against Ms Kirkbride about her decision to identify London as her main home and make claims on her Bromsgrove property. He has therefore reached no conclusion on her conduct in this respect or on how far she, as opposed to Mr Mackay, bore some responsibility for what he describes as "the deeply flawed arrangement which existed."[27]

22. The Commissioner also concludes that, having found that Mr Mackay broke the rules by designating the Bromsgrove property as his main home, it would be unreasonable to hold that Ms Kirkbride could not claim second home allowances for the same property. [28]

23. In 2008, Ms Kirkbride and Mr Mackay extended their joint mortgage on the Bromsgrove property by £50,000, to cover the cost of an extra (third) bedroom.[29] Ms Kirkbride claimed from ACA for the interest payments on the new loan, which she was only entitled to do if the extension to the property was necessary in order for her to perform her Parliamentary duties. Ms Kirkbride's evidence is that the extra bedroom was required in order to provide overnight accommodation for a child carer, which was a legitimate expense to charge against ACA. The basis of Mr Goggins' complaint against Ms Kirkbride is that her child carer, who is also her brother, was using the Bromsgrove property as his main home and that Parliamentary allowances were therefore being used to provide a benefit to a close adult relative, contrary to the rules.[30]

24. The Commissioner has found that Mr Kirkbride stayed from time to time in the Bromsgrove property and also in the London property. He provided childcare for the young son of Ms Kirkbride and Mr Mackay. Occasionally, Mr Kirkbride also stayed overnight at the Bromsgrove property by himself in order to assist Ms Kirkbride and her constituency staff with their IT.[31] He notes that Mr Kirkbride was registered to vote in the Bromsgrove constituency and that in February 2001, the Bromsgrove property was given as Mr Kirkbride's usual residential address on the registration form of a company registered for him at Companies House. Mr Kirkbride told the Commissioner that he had been unaware that his accountant had registered the Bromsgrove address with Companies House and that the company had never traded. He confirmed his sister's evidence that he was on the electoral roll in Bromsgrove so that he could vote for her in elections, but he had a main home elsewhere.[32]

25. Ms Kirkbride told the Commissioner that her brother's occasional stays in the Bromsgrove property assisted her with her Parliamentary duties. By providing childcare and IT support, he enabled her to reconcile the demands on her time as an MP with her responsibilities as a mother.[33] The view of the Department of Resources is that Mr Kirkbride did not receive a benefit from his occasional use of the Bromsgrove property. Instead, the benefit was to Ms Kirkbride in her capacity as an MP, by enabling her to discharge her Parliamentary role.[34]

26. The Commissioner notes the conclusion of Sir Thomas Legg's Review that the additional mortgage of £50,000 on the Bromsgrove property was "conflicted" because the payments "were used to provide accommodation for a non-dependent family member."[35] However, he also notes that Sir Paul Kennedy allowed Ms Kirkbride's appeal against this finding, because the extra bedroom was to accommodate her child's carer, and had been properly approved. Sir Paul saw no reason to prevent Ms Kirkbride from recovering the costs of the additional mortgage just because at the time it was envisaged that this child carer would normally be her brother.

27. The Commissioner notes that, from July 2006 to March 2009, the rules allowed Members to claim for the interest on a mortgage taken out to improve the second home.[36] However, he points out that, as with any claim against ACA, the additional costs arising from such an improvement still needed to be necessary for the purpose of performing the Member's Parliamentary duties.[37] The Commissioner considers that Ms Kirkbride has established that she met that test, because she had a legitimate need to provide a separate room for the person who looked after her child while she was fulfilling her Parliamentary duties. She also sought and gained approval from the Department of Resources.[38]

28. The Commissioner concludes, therefore, that Ms Kirkbride was within the rules in claiming interest on the additional mortgage.[39] He considers that it would be "an unduly harsh interpretation of the rules" to require a Member to meet the living costs of having a person stay overnight in their home when that person was there to look after their dependent child so that they could perform their Parliamentary duties.[40] In his judgment, the additional use of the property by her brother when Ms Kirkbride and her son were not there was not sufficiently regular to suggest that the cost of these stays should have been reflected in the claims Ms Kirkbride made on Parliamentary allowances. The Commissioner has not, therefore, upheld the complaint against Ms Kirkbride.[41]

Conclusion: Ms Julie Kirkbride

29. We agree with the Commissioner's decision not to uphold the complaint made against Ms Kirkbride. That complaint related solely to her claims for the cost of building an extension to her second home. Like him, we therefore offer no comment on Ms Kirkbride's role in the funding from Parliamentary allowances of the two homes she shared with Mr Mackay and we make no recommendation in respect of her.

Mr Mackay's evidence

30. Mr Mackay sent us his views on the Commissioner's memorandum by e-mail.[42] He told us that he welcomed the following findings in the memorandum:

that he did not seek, at any stage, to disguise his ACA arrangements;[43]
that at all times he and his wife believed they were acting on the advice of the then Head of the Fees Office;[44]
that when a Member has more than one home their main home is normally where they spend the most nights and that he spent slightly more nights in the Bromsgrove home;[45]
that he has paid a high price for a misjudgement;[46]
that it is perhaps understandable that as a busy politician he never reviewed the original decision;[47]
that his arrangements were openly declared and the Department fairly accepted that it was reasonable that from their silence there was no problem.[48]

31. Mr Mackay also drew our attention to the factual section of the Commissioner's memorandum and to his e-mail to the Commissioner of 12th September, where he set out why he believed he acted within the rules and in good faith.[49]

Conclusions and recommendation: Mr Andrew Mackay

32. We have to decide whether Mr Mackay was within the rules in designating his Bromsgrove property as his main home and claiming ACA for his London home. The Commissioner has concluded that Mr Mackay did breach the rules in designating his Bromsgrove home as his main home and that, regardless of this, his ACA claims in respect of his London home also broke the rules, because they were not beyond reproach. The Commissioner has attributed this breach to a "serious misjudgement" by Mr Mackay.

33. In summary, Mr Mackay's defence is that he genuinely believed and still believes that he was acting in accordance with advice; that he was always open about his arrangements, which were not challenged at the time; and that his claims were consistent with both the letter and the spirit of the rules.

34. We do not accept that, if Mr Mackay was acting on advice from the then Head of the Fees Office, he must have been acting within the rules. Both the Commissioner and, before him, Sir Paul Kennedy have concluded that where, as in this case, a Member received flawed advice, the overriding responsibility for ensuring that his claims were within the rules still lay with the Member. As the Commissioner has suggested, it was unwise of Mr Mackay not to seek fresh advice between 1997 and 2009, as the rules changed.

35. We also note the force of the Commissioner's conclusion that, if Mr Mackay had recognised that London was his as well as his wife's main home and that it was not acceptable for him and his wife to claim ACA for both their shared homes, "The result would have been that only his wife, and not he, could have made claims from parliamentary allowances for their Bromsgrove home, a home which was in her constituency and well away from his."[50] Such an arrangement would, in our view, have been closer to the spirit as well as being consistent with the letter of the rules.

36. The matters considered by the Commissioner in his inquiry into this complaint have clearly overlapped with the audit of Members' ACA claims carried out by Sir Thomas Legg and with the appeal heard by Sir Paul Kennedy. As noted earlier, Mr Mackay has described this as "triple jeopardy." The Commissioner has pointed out that the audit and appeals process did not enable the House to form a view on whether the rules of the House had been breached.[51]

37. The outcome of the Legg review was that Mr Mackay and Ms Kirkbride each had to repay £29,243 because, in the view of both Sir Thomas Legg and Sir Paul Kennedy, the arrangement of their main and second homes benefited Mr Mackay and Ms Kirkbride as a couple. We regard the question of repayment as having been settled by Sir Thomas Legg and Sir Paul Kennedy in the course of the extremely thorough audit and review processes they undertook. Our task is to decide whether to recommend to the House a Parliamentary sanction.

38. Although many Members, including Mr Mackay and Ms Kirkbride, repaid sums of money which, the audit found, they should not have been paid, no Member received a Parliamentary sanction as a direct consequence of the review. On the other hand, both Mr Mackay and Ms Kirkbride lost their jobs. The effect on their political careers was as if they had been expelled. It remains important to establish whether the rules of the House were broken and, if so, where responsibility lies, but we need to remember that both former Members have paid what the Commissioner has called "a high price."

39. We conclude that Mr Andrew Mackay breached the rules relating to second home allowances by wrongly designating his home in Bromsgrove as his main home for ACA purposes and because his claims against ACA for his London home were not beyond reproach. In our view, it should have been obvious to Mr Mackay that the arrangement whereby he and Ms Kirkbride each designated the other's second home as their main home, allowing both to be funded from Parliamentary allowances, was fundamentally wrong. It went beyond the purpose of the rules, which was to reimburse Members for the additional cost of maintaining a second home for Parliamentary purposes. The flaws in the arrangement should have been no less obvious to the Department of Resources and its predecessors, who should not have allowed it. But although this failure on the part of the House authorities may help to explain why Mr Mackay made and never corrected a serious misjudgement, the responsibility remains with him.

40. We are very disappointed that, even after seeing the Commissioner's full report, Mr Mackay maintains that he did not break the rules, when it is quite clear that he did. Mr Mackay has already paid a high price for making such a serious misjudgment. The very fact that Mr Mackay is no longer a Member of Parliament shows what a heavy political price he has paid. He has also repaid a considerable sum of money. Nonetheless, we expect Mr Mackay, having read our Report, to apologise for the breach in writing. Had Mr Mackay still been a Member of this House, we would have recommended that he apologise on the floor of the House by means of a personal statement and we would have recommended a period of suspension from the service of the House.

1 Appendix 1, paragraph 224 Back

2 Appendix 1, paragraph 225 Back

3 Appendix 1, paragraph 226 Back

4 Appendix 1, paragraph 227 Back

5 First Report from the Members Estimate Committee, Session 2009-10, Review of past ACA payments Back

6 Appendix 1, paragraph 228 Back

7 Appendix 1, paragraph 140 Back

8 Appendix 1, WE13 Back

9 Appendix 1, paragraph 141 Back

10 Appendix 1, paragraph 142 Back

11 Appendix 1, paragraph 232 Back

12 Appendix 1, paragraph 144 Back