Appendix 1: Memorandum from the Parliamentary
Commissioner for Standards
Complaints against the Rt hon Andrew Mackay
and Ms Julie Kirkbride
Introduction
1. This memorandum reports on my inquiry into a complaint
that Rt Hon Andrew Mackay, then the Member for Bracknell, wrongly
identified a property he shared in Bromsgrove with his wife, Ms
Julie Kirkbride, then the Member for Bromsgrove, as his main home
for the purposes of claims against the Additional Costs Allowance
(ACA).
2. This memorandum also reports on my inquiry into
a complaint from the same complainant that Ms Kirkbride made claims
against her ACA for the costs of an extension to the same Bromsgrove
property, which she nominated as her second home, and that those
claims were not wholly, exclusively and necessarily incurred for
the purpose of performing her parliamentary duties.
3. I have taken the period covered by both complaints
to be the financial years from 2004-05 to 2008-09 inclusive.
The Complaints
4. On 30 October 2009 Mr Michael Goggins of Belbroughton
in Worcestershire wrote to me regarding certain claims against
the ACA made by Mr Mackay and his wife Ms Julie Kirkbride.[52]
Mr Mackay and Ms Kirkbride were at the time both Members of Parliament.
5. Mr Goggins drew my attention to an article published
by the Guardian on 14 May 2009, which said that Mr Mackay
had designated his London home as his second residence, allowing
him to claim more than £1,000 a month in mortgage interest
payments for the property from the ACA.[53]
The newspaper noted that this was "in line with many other
MPs".
6. The newspaper said that "[Mr Mackay's]
mistake was to designate as his main home a flat he shares
with Kirkbride in a large listed building in her Bromsgrove constituency."
Mr Goggins noted that the newspaper reported that Mr Mackay had
said there was nothing wrong with this because he had been brought
up in the Midlands and had strong connections with the area. The
report stated that Mr Mackay had designated no property in his
Berkshire constituency.
7. In relation to Ms Kirkbride, Mr Goggins said,
"the question arises as to what if any account should
be given to the fact that since 2004 her brother Ian lived at
the same address rent free." Mr Goggins said: "That
the same property was to all intents and purposes Ian Kirkbride's
main residence is evidenced by the fact that not only did his
name appear on Bromsgrove electoral roll since 2004 but that he
also ran a business from the same address. Furthermore there is
apparently evidence that he spent most of his time there even
when Julie Kirkbride wasn't staying there ..." Mr Goggins
said that he no longer had the relevant newspaper article.[54]
He said that in claiming her allowances Ms Kirkbride appeared
to have taken no account of the fact that her brother was staying
at the same property rent free and "that she was in fact
subsidising his cost of living at the expense of the public purse
..."
8. In addition, Mr Goggins said, Ms Kirkbride had
"recently" taken out a loan of some £50,000,
part funded through the public purse by means of the ACA "in
order to build a third bedroom at her constituency home so as
her son and her brother no longer have to share the same bedroom
when Julie Kirkbride and her family stay over." Mr Goggins
attached an article from the Daily Telegraph of 28 May
2009.[55] The article
claimed that Ms Kirkbride had "told the parliamentary
authorities last year that she needed an extra bedroom to house
her 'growing family'. She was therefore given permission
to increase her mortgage by £50,000, leaving the taxpayer
to pay the higher interest costs on the loan. However, it emerged
that her brother, Ian, lived at the flat and did not pay rent.
Her family had not increased in size since 2000."
9. Mr Goggins said that Ms Kirkbride's constituency
home "is two bedroomed and therefore sufficiently large
enough to accommodate her needs and that of her son. It is not
incumbent on the taxpayer to provide for the needs of her brother
and the same is contrary to the principles contained in the Green
Book for the claiming of Additional Costs Allowance." In
addition to the articles from the Guardian of 14 May and
the Daily Telegraph of 28 May, Mr Goggins sent me an article
from the Birmingham Post of 25 May.[56]
This made a number of allegations about Ms Kirkbride, and her
brother's use of her Bromsgrove property. He also sent me articles
from the newspaper getbracknell of 14 May[57]
and the Daily Mail of 26 May.
10. Mr Goggins also said that, although Ms Kirkbride
insisted that her brother stayed at her Bromsgrove home in order
to look after her son, "it should be noted that the provision
of childcare is not claimable against allowances."
11. I wrote to Mr Goggins on 5 November 2009 to let
him know that I had accepted his complaints.[58]
I noted that the essence of his complaint in respect of Mr Mackay
was that Mr Mackay had wrongly identified his main home for the
purposes of claims against the Additional Costs Allowance, contrary
to the rules of the House. I noted that the essence of his complaint
against Ms Kirkbride was that she had made claims against her
Additional Costs Allowance for costs which were not wholly, exclusively
and necessarily incurred for the purpose of performing her parliamentary
duties.
12. In this memorandum I set out the relevant rules
of the House in each case before turning first to some general
issues related to my inquiries (beginning at paragraph 27), then
to my specific inquiries in respect of Mr Mackay (beginning at
paragraph 35) and, finally to Ms Kirkbride (beginning at paragraph
151).
Relevant Rules of the House
13. The Code of Conduct for Members of Parliament
provides in paragraph 14 as follows:
"Members shall at all times ensure that their
use of expenses, allowances, facilities and services provided
from the public purse is strictly in accordance with the rules
laid down on these matters, and that they observe any limits placed
by the House on the use of such expenses, allowances, facilities
and services."
14. The over-arching rules in relation to the ACA
which are relevant to the first part of the period covered by
this complaint were set out in Section 3 of the Green Book published
in June 2003. In his Introduction to that edition of the Green
Book, the Speaker wrote:
"Members themselves are responsible for ensuring
that their use of allowances is above reproach. They should seek
advice in cases of doubt and read the Green Book with care. The
Finance and Administration Department is there to relieve Members
of the bulk of the day to day administration of Parliamentary
allowances whilst helping Members to provide the necessary accountability."
15. The scope of the allowance was set out in Section
3.1.1 as follows:
"The additional costs allowance (ACA) reimburses
Members of Parliament for expenses wholly, exclusively and necessarily
incurred when staying overnight away from their main residence
(referred to below as their main home) for the purpose of performing
Parliamentary duties. This excludes expenses that have been incurred
for purely personal or political purposes."
16. Eligibility was set out in Section 3.2.1 as follows:
"You can claim ACA if:
a You have stayed overnight away from your only
or main home, and
b This was for the purpose of performing your
Parliamentary duties, and
c You have necessarily incurred additional costs
in so doing, and
d You represent a constituency in outer London
or outside London."
17. Section 3.3.1, dealing with the location of
overnight stays, included the following:
"If your main home is in the constituency,
you can claim ACA for overnight stays in London—or in another
part of the constituency if reasonably necessary in view of the
distance from your only or main home.
"If your main home is in London you can claim
for overnight stays in the constituency.
"If your main home is neither in London nor
the constituency you can choose in which of these areas to claim
ACA."
18. Section 3.4.3 provided as follows:
"Please inform the Department if you are
claiming ACA in respect of a property which you share with another
Member."
19. Section 3.9.1 included the following definition
of 'main home':
"Main home
When you enter Parliament we will ask you to give
the address of your main home for the purposes of ACA and travel
entitlements. It is your responsibility to tell us if this changes.
This will remain your main home unless you tell us otherwise."
...
"The location of your main home will normally
be a matter of fact. If you have more than one home, your main
home will normally be the one where you spend more nights than
any other. If there is any doubt about which is your main home,
please consult the Department of Finance and Administration."
20. The edition of the Green Book published in 2006
is most relevant to the complaint against Ms Kirkbride. In his
introduction to that edition, the then Speaker wrote:
"Members themselves are responsible for ensuring
that their use of allowances is above reproach. They should seek
advice in cases of doubt and read the Green Book with care. In
cases of doubt or difficulty about any aspect of the allowances
or how they can be used, please contact the Department of Finance
and Administration. The Members Estimate Committee, which I chair,
has recently restated the Department's authority to interpret
and enforce these rules."
21. That edition also included the following principles
in sections 3.3.1 and 3.3.2, which were not included in earlier
editions:
"You must ensure that arrangements for your
ACA claims are above reproach and that there can be no grounds
for a suggestion of misuse of public money. Members should bear
in mind the need to obtain value for money from accommodation,
goods or services funded from the allowances.
"You must avoid any arrangement which may
give rise to an accusation that you are, or someone close to you
is, obtaining an immediate benefit or subsidy from public funds
or that public money is being diverted for the benefit of a political
organisation."
22. The 2006 edition reproduced in similar form the
provisions of sections 3.1.1, 3.2.1, 3.3.1 and 3.9.1 of the 2003
edition. The provisions on sharing arrangements were however slightly
revised as follows in section 3.5.3:
"You must inform the Department if you are
claiming ACA in respect of a property which you share with another
Member."
23. Section 3.7.3 of the 2006 edition set out the
conditions under which re-mortgaging was permissible:
"Re-mortgaging is permissible if moving to
different accommodation or if repairing or improving your existing
ACA home."
"Members should consult the DFA before making
any major commitments."
No such provision had been included in the 2003 Green
Book.
24. Paragraph 3.13.1 listed expenditure which was
allowable, including:
- "Increases to mortgage
costs (ie: re-mortgaging) to pay for improvements to a property
...
- "Maintenance &
service agreements
v necessary
repairs to make good dilapidations
v decoration".
25. Paragraph 3.14.1 listed expenditure which was
not allowable, including the following:
- "Living costs for anyone
other than yourself
- Interest on any additional mortgages, advances
or loans secured on the same property unless required for the
repair or improvement of that property
- The capital cost of repairs which go beyond
making good dilapidations and enhance the property."
26. Paragraph 3.14.1 also provided:
"Please seek advice on what is allowable
before committing to building works of any sort".
My Inquiries: relationship to
other inquiries
27. I wrote separately to Mr Mackay and Ms Kirkbride
on 5 November 2009, inviting their comments on the respective
complaints.[59]
28. On 18 November, Mr Mackay replied on behalf of
Ms Kirkbride and himself.[60]
He asked me whether I had considered "the serious issue
of double jeopardy. We note that Sir Thomas Legg has not scrutinised
the second home allowances of our colleagues who were being investigated
by you so as to avoid double jeopardy.[61]
As we are in dialogue with Sir Thomas concerning his provisional
findings on issues directly relating to the complaints you raise
we would much appreciate your comments and advice."
29. I replied to Mr Mackay on 23 November, saying
that the dialogue he was in with Sir Thomas Legg was a matter
for Sir Thomas to consider.[62]
I told Mr Mackay that he might, therefore, wish to write to Sir
Thomas to set out his concerns and to seek his response.
30. Mr Mackay replied on 2 December.[63]
He said that the complaints had only been lodged with me at the
end of October, by which time Sir Thomas had made his provisional
findings on issues directly relating to these complaints. Mr Mackay
said that he had since been in dialogue with Sir Thomas. Therefore,
Mr Mackay said, the specific point was that, to avoid double jeopardy,
"surely this matter should be left to Sir Thomas Legg
and it is on that which we would appreciate your advice."
31. I replied to Mr Mackay on 14 December.[64]
I said that I recognised his concern about going back over ground
which he may already have covered in the course of Sir Thomas
Legg's audit. But I said I did not think it would have been reasonable
for me to have refused to accept on these grounds complaints properly
made to me in accordance with the procedures approved by the House.
Nor did I think it would be reasonable in all the circumstances
for me now to seek to abandon my inquiry, assuming it was possible
under the rules of the House for me to do so.
32. I said that my reasons for this conclusion were
as follows. My inquiries would relate solely to the complaints,
and not to any other matters in relation to ACA claims made by
Mr Mackay and Ms Kirkbride which may have been considered by Sir
Thomas. I told Mr Mackay that if I were to uphold the complaints—and
I said I had obviously formed no view at all on that—then,
unlike Sir Thomas's audit process, the Committee on Standards
and Privileges and the House would have the opportunity to consider
and decide if the rules had indeed been broken and, if so, what,
if any, sanction to impose. In that event, I said I believed that
the Committee would want to take full account of any repayments
Mr Mackay had made as a result of Sir Thomas's audit. I told Mr
Mackay that the process was, therefore, different, as were the
scope of the inquiry and the range of consequences.
33. I said that that I recognised Mr Mackay's understandable
concerns, but I asked, in the light of paragraph 18 of the Code
of Conduct for Members of Parliament,[65]
that he and Ms Kirkbride co-operate with my inquiry and respond
to my letters of 5 November.[66]
34. On 22 December Mr Mackay wrote to me, saying
that he had been disappointed to read my letter of 14 December,
as he and his wife still strongly believed that my decision "amounts
to double jeopardy".[67]
However, Mr Mackay told me, if this was my final decision
he and his wife would naturally wish to co-operate by responding
to my letters of 5 November "to explain why there is no
case to answer". I replied to Mr Mackay on 23 December
and confirmed that I would like now to make progress with my inquiries.[68]
My Inquiries: Rt Hon Andrew Mackay
35. When I wrote to Mr Mackay on 5 November I told
him that the essence of the complaint against him was that he
had wrongly identified his main home for the purposes of claims
against the Additional Costs Allowance, contrary to the rules
of the House.[69] I asked
him about his arrangements for claiming the ACA on his second
home from 2004-05 to 2008-09 inclusive—including the location
of his main and second homes and the dates of each designation.
I also asked him to let me know the purchase costs of each home
and the details of any mortgages which he held or had held on
his first and second homes since 2004-05. I asked for information
about the nature of the accommodation provided by his main and
second homes and the reason why he had identified the property
in question as his main home. I asked him to tell me the number
of nights he had spent in his designated main home in each financial
year from 2004-05 to 2008-09 inclusive, the number of nights he
had spent in the home on which he claimed against his ACA, and
the number of nights he had spent elsewhere, together with any
documentary evidence, including diaries or travel records, which
he had used to prepare these figures.
36. I also asked Mr Mackay whether, and if so when,
he had informed the Department that he was claiming ACA in respect
of a property which he shared with another Member, for the size
of his ACA claims in each financial year from 2004-05 to 2008-09
inclusive, together with the main categories under which he had
claimed, identifying his mortgage interest claims and what proportion
of his total mortgage they represented, and whether at any time
he had consulted the then Department of Finance and Administration
about his arrangements. I asked him for details of any such consultation,
including any documentary evidence he might have.
37. Following our correspondence about the relationship
between this and other inquiries,[70]
Mr Mackay replied to me on 21 January 2010.[71]
He said that after his marriage to Ms Kirkbride he had sought
advice from the then Head of the Fees Office about their ACA.
The Head of the Fees Office asked about their homes and was told
they jointly owned a family house in Westminster and a large apartment
in a listed building in Ms Kirkbride's constituency. Mr Mackay
said that he had explained that he had never had a home in his
constituency. The Head of the Office had then advised that "as
we had two proper homes with a joint mortgage and where we were
both on the electoral roll either could be deemed a main home".
Mr Mackay said that the Head of the Fees Office had recommended
that Mr Mackay should nominate the Bromsgrove property as his
main home and claim ACA on the London home.
38. Mr Mackay told me that this arrangement had been
put on file in the Fees Office and ACA payments had been made
accordingly. He said that "At all times we declared our
second and main home addresses to the Fees Office in a totally
transparent way. This was never queried."
39. The property in Bromsgrove was, said Mr Mackay,
"a natural main home for me as I had close links to the
Bromsgrove area where my family and friends still live. I was
born and brought up in the next door constituencies and look after
the interests of two close elderly relatives through our family's
longstanding property portfolio based in the area."
40. Mr Mackay noted that on 20 May 2009 the House
rules had been changed with immediate effect to state: "Members
who are married to each other must nominate the same main home
and are limited to claiming one person's PAAE between them".
Mr Mackay said that whilst the single claim did not affect him
and Ms Kirkbride, as he had already elected to take up the London
Costs Allowance due to a rule change for the new financial year,
"the introduction of the rule on nominating the same main
home confirms this was not previously in place."
41. Mr Mackay said that during the period in question
he had nominated the property in Bromsgrove as his main home and
the London property as his second home. Ms Kirkbride and he had
bought the London property for £850,000 in 1998,[72]
taking out a mortgage of £200,000 which they still maintained
on an interest only basis. He said they had bought the Bromsgrove
home in 1997 for £75,000 "in a very dilapidated state"
and had spent more than double the purchase price on restoring
it. They had taken out an interest-only mortgage of £180,000
on the Bromsgrove property in 2004. Mr Mackay said that they had
further extended the mortgage by £50,000 in April 2008 to
cover the cost of an extra bedroom to meet their family's needs.
42. Mr Mackay said that the accommodation in the
Bromsgrove home originally comprised a sitting room, dining room,
kitchen, two double bedrooms and two bathrooms. He and Ms Kirkbride
had then added a further bedroom to make it three. The London
property was a three-bedroom terraced house with three reception
rooms, two bathrooms and a study. Mr Mackay added that he rarely
spent a night in his constituency "as on Fridays and weekends
I prefer to commute between there and my main home which are linked
by motorways or dual carriageways for virtually the whole journey.
I also regularly visit my constituency from London during the
week. As a result, I spend most Friday, Saturday and Sunday nights
... as well as most recesses at my main home."
43. Mr Mackay said that the figures for where he
spent his nights were likely to be estimates, particularly as
he did not have an electronic diary or written records for the
years in question. However, he said he could give a best estimate
for the last calendar year which he believed would also broadly
reflect his sleeping patterns in the financial years in question.
Mr Mackay said that this estimate would indicate that he spent
155 nights in the Bromsgrove property, 139 nights at the London
property, 54 nights on holiday, nine nights on parliamentary business
abroad and eight nights in his constituency.
44. Mr Mackay said that he had not informed the Fees
Office that he was sharing a property with another Member who
was his wife. Mr Mackay said that he had made "the reasonable
assumption" that the rule was to identify non-related
Members who had come to private agreements to share properties
and did not apply to those Members where it was public knowledge
that they were married to each other. He said that the mortgage
had always been interest-only and he attached a breakdown of his
ACA claims, which he said were a best estimate as information
provided by the Fees Office "is somewhat confusing".[73]
This indicated that Mr Mackay claimed sums in respect of mortgage
interest ranging from £8,439 in 2004-05 to £11,968 in
2007-08, a total of £49,230 over the five-year period covered
by the complaint.
45. I wrote to Mr Mackay on 26 January.[74]
I asked him whether he had any documentary or other evidence to
substantiate the estimates he had made of the number of nights
he had spent in various locations in 2009. I also asked Mr Mackay
for more detail about how he fitted his parliamentary duties into
his family life. I said that it had been suggested in press reports
that Mr Mackay's son was at school in London. I asked Mr Mackay
whether he had dependent children who lived with him; how that
operated in terms of how he allocated his time between his two
homes; and whether, in the light of his professional responsibilities,
Mr Mackay's living arrangements were significantly different from
those of his wife. In particular, I asked Mr Mackay to explain
how his main home was in Bromsgrove while his wife's appeared
to be in London.
46. I asked Mr Mackay to let me know the dates of
the contacts he had had with the former Head of the Fees Office.
I noted that Mr Mackay had reported that his arrangement had been
put on file in the Fees Office, and asked whether he had any documents
relating to the advice he had sought from that official and to
the filed document to which he had referred.
47. I asked Mr Mackay to clarify my understanding
of his statement that he did not inform the Fees Office that he
was sharing a property with another Member, who was his wife.
I said I was finding it difficult to reconcile that with the
implication of Mr Mackay's statement that he had told the then
Head of the Fees Office that he jointly owned the two properties
with Ms Kirkbride. I also asked him whether he had claimed from
his ACA for the full mortgage interest on his second home in London.
48. On 4 February the findings of Sir Thomas Legg's
Review of past ACA payments[75]
and of Sir Paul Kennedy on ACA repayment appeals were published.[76]
In his conclusions and recommendations on Rt Hon Andrew Mackay,
Sir Thomas said that the arrangements entered into by Mr Mackay
and Ms Kirkbride "meant that, between them, the couple
had no main home which was not funded by the ACA. Throughout the
five years of the review period, they both claimed at or close
to the full allowance to support their two homes. These arrangements
obtained a financial benefit for the couple which appears unintended
under the Green Book rules, and as such contrary to the principles
governing it. Had they made different designations, each MP might
reasonably have claimed up to two-thirds of the full allowance
on a shared second home. On this footing, each of them was overpaid
by one-third of the maximum ACA for each year of the review period.
This is £29,243." Sir Thomas recommended that Mr
Mackay should make a repayment in respect of mortgage interest
of that sum, and noted that it had been repaid. Sir Thomas also
recommended that Mr Mackay repay other costs which are not the
subject of my inquiry. Mr Mackay appealed against Sir Thomas's
findings. Sir Paul Kennedy dismissed his appeal, telling him:
"You say that the way in which you and your wife designated
your homes was in accordance with advice given by the Fees Office.
If so it seems to me that the advice was plainly mistaken, and
indeed that you should have recognised it to be mistaken."
Sir Paul said that the arrangements entered into by Mr Mackay
and Ms Kirkbride had "lost sight of the purpose of ACA,
which was to assist Members to fund the cost of accommodation
when they needed a second home in order to fulfil their duties.
It was never intended to relieve them of the costs of their main
home, and you operated it in such a way as to achieve that result."
49. On 12 February Mr Mackay responded to some of
the questions I had put to him in my letter of 26 January.[77]
He said he would need a little more time to see if he could find
any more information relevant to the remainder. Mr Mackay said
that the only dependent child living with him and Ms Kirkbride
was their son who attended school in London. The son would normally
move with Ms Kirkbride between the London and Bromsgrove properties.
Mr Mackay said that the estimated figures he had supplied to
me showed that he spent slightly more nights in Bromsgrove than
in London. There would be some Sunday nights and days in the September
recess (when their son was back at school) when he would remain
in Bromsgrove to attend to family commitments, whilst Ms Kirkbride
had returned to the London property with their son.
50. Mr Mackay reiterated that he had taken advice
about ACA arrangements from the then Head of the Fees Office soon
after marrying Ms Kirkbride. However Members were only required
to inform the Fees Office they shared accommodation with another
Member at a much later date. He "could not believe"
that this referred to married couples as it was self evident,
so he did not register the fact at that time. Mr Mackay said that
he had always claimed for the full mortgage interest on his second
home.
51. I wrote to Mr Mackay on 15 February, asking him
to confirm that I was right in taking it from his letters that
his pattern of overnight stays was substantially the same as Ms
Kirkbride's except for September each year, when he spent some
Sunday nights and, as I understood it, Monday to Thursday nights
inclusive in Bromsgrove while Ms Kirkbride and their son were
in London so that their son could go back to school.[78]
I said that presumably Ms Kirkbride returned to the constituency
with their son on Friday before returning again to London on Sunday.
I said I took it that this arrangement had continued for some
three weeks in September/early October before the House returned.
52. On 8 March Mr Mackay replied, saying that what
I had surmised was "nearly correct".[79]
However "for the avoidance of any doubt" he stated
that his pattern of overnight stays was broadly the same as his
wife's except for some Sunday nights periodically around the year
and some nights during the September recess when he would be at
the Bromsgrove property attending to matters concerning his relatives,
whilst Ms Kirkbride was in London as their son was attending school.
"I would just add that from time to time I might be away
on golfing trips when more often than not my wife and son would
remain at the London property".
53. Mr Mackay also answered the remaining questions
I had put to him in my letter of 26 January.[80]
He said that Ms Kirkbride was first elected in May 1997 and they
married on 1 August that year. He and Ms Kirkbride had purchased
the Bromsgrove property in September 1997 so his best estimate
of the date of his meeting with the then Head of the Fees Office
would be around that time. Mr Mackay said he could "clearly
recall [the then Head of the Fees Office] concluding that
meeting by stating he would place this arrangement on file. It
was not my experience that such matters were put in writing at
that time. However at all times we declared our second and main
home addresses to the Fees Office in a totally transparent way.
This was never queried." Mr Mackay said that the figures
for the number of nights he had spent in various locations in
2009, which he had given to me in his letter of 21 January,[81]
were best estimates based on recent memory.
54. Having considered Mr Mackay's evidence I decided
that it would be helpful to have advice from the Department of
Resources. I wrote on 10 March to the Director of Operations in
that Department, attaching copies of the relevant correspondence
and seeking his advice on the complaint.[82]
I asked the Director if he could advise me in particular on the
discussion which Mr Mackay reported that he had had with the then
Head of the Fees Office in September 1997, and I asked him for
any written records relating to Mr Mackay's discussions of his
and his wife's circumstances at that time. I also asked the Director
whether the Department at any other time gave any consideration
to the arrangements under which Mr Mackay claimed for his second
home in London, taking account of the claims which Ms Kirkbride
was making for her second home in her constituency. I asked the
Director whether, in all the circumstances, he considered that
Mr Mackay was within the rules in claiming second home allowance
for his London home.
55. On 17 March the Director of Strategic Projects
at the Department wrote to me on the Department's behalf.[83]
The Director told me that that the Department had not been able
to discover any records which would cast light on Mr Mackay's
discussions with the then Head of the Fees Office in 1997. That
official had retired in 1998. Nor did the Department have any
records which indicated that any later consideration was given
within the Department to the elections which Mr Mackay and Ms
Kirkbride made as to their main and additional homes.
56. The Director said the Department was "certainly
aware of the arrangements in the sense that both Mr Mackay and
Ms Kirkbride made their declarations openly. I think that it is
reasonable for Mr Mackay to have inferred from this that the Department
had no difficulty with the arrangements." The Director
noted that Mr Mackay's arrangements were the subject of a story
in the Daily Telegraph in May 2009, but no action had then
been taken by the Department because of the impending review conducted
by Sir Thomas Legg.
57. The Director noted that Sir Thomas Legg had concluded
that Mr Mackay and Ms Kirkbride had obtained a financial benefit
unintended under the Green Book rules and therefore had acted
contrary to the principles governing it, and that Sir Paul Kennedy
had dismissed Mr Mackay's appeal against Sir Thomas's findings.[84]
The Director said, "I have no reason to dissent from Sir
Thomas's and Sir Paul's conclusions that Mr Mackay was not within
the rules in claiming second home allowance for his London home.
I regret that the original advice of the Department, and its subsequent
inaction, may have given Mr Mackay comfort in his claims."
58. On 24 March I wrote to Mr Mackay, with a copy
of the Department's letter of 17 March.[85]
I attached to my letter the conclusions of Sir Thomas Legg's review
and Sir Paul Kennedy's determination of Mr Mackay's appeal.[86]
I invited Mr Mackay's comments on the Department's advice. At
the same time, I considered whether I should seek evidence from
the former Head of the Fees Office. I concluded that it was not
necessary for me to do so. It had been 13 years since the original
conversation and 12 years since the then Head of the Fees Office
had retired from the service of the House. It might be difficult
at that remove to expect him to recall the details of his meeting.
59. Mr Mackay replied to me on 25 March.[87]
He said, "I can only conclude that this correspondence
now takes us back to square one and is proof of my original point
that I am facing triple jeopardy on an issue that has already
been adjudicated twice by Sir Thomas Legg and Sir Paul Kennedy."
Mr Mackay said that he would "for the record"
state that he did not agree with their findings, but that he had,
along with his wife, repaid £58,486 as they had been requested
to do. Mr Mackay said that he had read with interest the response
of the Director of Strategic Projects to my inquiries which, whilst
accepting the outcome of "the official House of Commons
inquiry", nevertheless appeared sympathetic to his [Mr
Mackay's] case. Mr Mackay said that the Director acknowledged
that Mr Mackay and his wife had been given this advice by his
Department, that their declarations had been made openly, that
it had been "reasonable for [him] to think that
the Department had no difficulty with the arrangement and that
their inaction gave [him] comfort in making the claims."
Mr Mackay concluded: "I would therefore assume that
you will deem this matter concluded."
60. I wrote to Mr Mackay on 29 March, noting that,
to resolve the complaint against him, the issue I had to decide
was whether he had been in breach of the rules of the House in
the identification of the property near Bromsgrove as his main
home.[88] I told him
that if I were to submit the matter to the Committee on Standards
and Privileges, it would need to decide whether it accepted my
conclusions and, if so, what, if any, action to take. The consideration
of complaints and the consideration of what, if any, penalty was
appropriate for a Member who had breached the rules were solely
matters for the complaints process. They could not be resolved
by the audit of Members' expenses.
61. I told Mr Mackay that I had taken it from his
letter that he did not accept that he had been in breach of the
rules of the House in identifying the Bromsgrove property as his
main home and, therefore, making claims on his London property.
I said that while I had so far considered separately the complaint
against Mr Mackay and the complaint against Ms Kirkbride, I believed
it would be necessary for me to come to a view on the propriety
of the identification of his main home before I could come to
a conclusion on the complaint against Ms Kirkbride. I told Mr
Mackay that this was because, if I were to find that the property
in Ms Kirkbride's constituency had indeed been his main home,
then I would need to consider whether Ms Kirkbride was acting
within the rules in claiming for the mortgage interest on the
additional mortgage taken out in order to build an extension to
that home.
62. I said that I would, therefore, need to explore
with Mr Mackay why, despite the findings of the audit and the
outcome of the appeal against the decisions from that audit, he
considered that the identification of his main home was within
the rules of the House. I told Mr Mackay that I thought that this
might best be achieved by our meeting so that I could take oral
evidence from him on this matter.
63. The Dissolution of Parliament on 12 April followed
shortly after this letter. I arranged to meet Mr Mackay as soon
as was convenient to him once Parliament had assembled on 18 May.
On 3 June I received from the Department of Resources a summary
detailing Mr Mackay's ACA/PAAE claims from 2004-05 to 2008-09.[89]
64. I interviewed Mr Mackay on 9 June.[90]
He confirmed that he had bought his property in Bromsgrove in
September 1997 and his current London property in September 1999.
He also confirmed that he had bought both properties jointly with
his wife, Ms Kirkbride, and that they had a joint mortgage on
each property.
65. Mr Mackay also confirmed that around September
1997 he had designated his Bromsgrove property as his main home
and had begun to claim against the ACA for his London home. He
confirmed that at the same time his wife had designated the London
property as her main home, and had begun to claim against the
ACA for the Bromsgrove home. In the five years from 2004-05 to
2008-09, Mr Mackay confirmed that he had claimed at or near the
maximum of his ACA allowance for his London home. In April 2009,
he had ceased claiming ACA on his London property and claimed
instead the London Costs Allowance.
66. Mr Mackay said that he had had another London
home before purchasing his current London home in 1999; he had
claimed ACA on that property "and then things just transferred
to the other [London] property." The additional
mortgage for an extension in Bromsgrove had been a joint mortgage—not
a new mortgage but an extension to the mortgage. "It was
not taken out to meet the full cost of the extension to the flat,
but a proportion of it."
67. Mr Mackay confirmed that his pattern of overnight
stays in Bromsgrove was "broadly the same" as
his wife's, except for some Sunday nights during the year and
some other nights during the September recess. He told me that
normally in September when there was a recess and their son was
back at school his wife would be in London with their son. Mr
Mackay said he would perhaps be there too or perhaps attending
to the family duties relating to his two elderly relatives. He
said that normally he and Ms Kirkbride had joint holidays. Each
of them might have gone on parliamentary delegations, but these
would approximately cancel each other out. He confirmed that
he had spent "slightly more" nights in Bromsgrove
than in his London property. For 2009, he agreed that he estimated
that he had spent approximately 16 more nights a year in Bromsgrove
than in London. Asked to confirm that this balance of nights between
London and Bromsgrove was a consistent pattern from 2004-05 to
2008-09, Mr Mackay said that there was not a different pattern,
although it was not exactly the same in each year.
68. Mr Mackay said that he had got to these figures
by trying to work through his current diary. "I don't
have past diaries. But I could say roughly when I was on holiday
in past years." Asked whether the difference in the number
of overnights he had spent in each property was marginal, in
that, if his estimate had been wrong by only nine nights a year,
he would have been spending more nights in London, Mr Mackay said,
"That is an approximation I have given you. I am not sure
that my definition of marginal is the same as yours. But I never
set out to suggest that I stayed massively more in one place than
in the other."
69. On the relative values of the homes, Mr Mackay
said that a London property was always going to be more valuable.
He said, "Our London home is a town house with three and
a half bedrooms, three reception rooms and two bathrooms. Our
constituency home is in a listed building in which we have the
largest apartment. We have two reception rooms and three bedrooms,
including the extra one, and two bathrooms. They are about the
same square footage but the valuation will be higher for the London
home because central London prices are higher than North Worcestershire
prices."
70. Mr Mackay confirmed that their son went to school
in London and that London was where his wife spent more nights
than in Bromsgrove, since she had designated London as her main
home. "When our son is at school she is always with him.
I am normally with him and I like to be with him but there are
times when I cannot be, for example in the month of September."
I asked Mr Mackay why, given the fact that his wife saw London
as her main home, and given the nature of the property, the proportion
of the nights he had spent there, and their son's commitments
at school there, he had nevertheless thought it right to designate
Bromsgrove as his main home, in effect away from his family's
main base. Mr Mackay replied that it was based on the number of
nights he had spent there, which had been the principal reason;
and also on the advice given by the then Head of the Fees Office
when he had gone to see him. "Also, unlike my wife, I
was born in Birmingham and brought up in the Midlands."
71. Mr Mackay said that having received London Costs
Allowance from April 2009, he did not continue to designate Bromsgrove
as his main home for his travel claims. He said, "I have
only ever claimed for travel between Parliament and my constituency.
I have never claimed travel to and from my main home. I felt it
would be an unreasonable burden on the taxpayer." Mr
Mackay said that April 2009 had been his first opportunity to
change when the new rules came in. The London Costs Allowance
had increased to £7,500 (taxable). That had been sufficient
to cover his mortgage and other costs. There had been a campaign
in the local and regional press against Members within commuting
distance of London receiving the second home allowance so he had
elected to "swap over."
72. Mr Mackay said that the Bromsgrove flat was at
the time of the interview on the rental market, though without
"any real interest in it. I don't know whether we will
continue to live in Bromsgrove. We have now both accepted private
sector jobs within a short distance of our London home, and we
will have to decide whether to retain our home in Bromsgrove.
No decision has been taken." Mr Mackay said that his
responsibilities for elderly relatives in the Bromsgrove area
were now slightly different. He did not have the same need to
be in Bromsgrove as he had eighteen months previously. He said,
"The property portfolio is now in the hands of a firm
of chartered surveyors and one of my elderly relatives is now
in residential care most of the time. I drive up to see them and
back, which is difficult but do-able."
73. I asked Mr Mackay about his contacts with the
Fees Office and informed him that I had not yet thought it necessary
to consult the then Head of the Fees Office, who had retired in
1998, about this matter. Mr Mackay said that his wife had not
joined him in his meeting to discuss his arrangements with the
then Head of the Fees Office in about September 1997. She had
been a new MP just arrived in the House. He had explained to the
then Head of the Fees Office that his circumstances had changed,
as he was now married to an MP and "had no idea what to
do with my second home allowance." He had described the
properties as he had described them to me, although there had
been one less bedroom in Bromsgrove then. He said that "The
Head of the Fees Office said it was straightforward and he told
us what to put in place. That is what happened ever since."
His wife and he were "completely transparent. We did
not feel we were doing anything wrong. We always filled in our
forms correctly. That was why it was a very great shock when it
was suddenly suggested that our arrangements were wrong."
74. Mr Mackay said that he had no idea what arrangements
he should have had. "I asked the Head of the Fees Office
and the idea was entirely his. I have a very clear memory of the
meeting. As far as I was concerned he put a note on the file."
Mr Mackay said that the Director of Strategic Projects had confirmed
to me that the Fees Office had not questioned their arrangements,
"which gave us comfort." Mr Mackay said that
he had been aware at the time that his wife would be claiming
for the London property as her second home. He had gone to see
the then Head of the Fees Office on behalf of them both. It had
been that official's suggestion that she should nominate one property
and he should nominate the other.
75. Mr Mackay said that he had never thought about
the point that, had he identified London as his main home, it
would not have been possible for him to have claimed ACA for his
Bromsgrove property. He had gone to see "the person in
charge at the very top. I had had a number of contacts with him
over the years. I asked him what I should do and I did it."
As far as he was concerned he had done everything transparently
and correctly. If anything he had always erred on the cautious
side. At one point he had been on the Committee on Standards and
Privileges. He had always been meticulous about ensuring everything
was in place correctly and done transparently.
76. Mr Mackay said that the then Head of the Fees
Office had asked him questions about whether he had somewhere
in his own constituency, and about the size of the properties,
and then the then Head of the Fees Office had said "This
is what you should do." Mr Mackay said that he did not
agree with Sir Paul Kennedy that if such was the advice he had
been given, it had been "plainly mistaken".[91]
Mr Mackay continued, "With respect it is easy to be
wise after the event." He said that he did not agree
with Sir Paul because he had gone to get advice, to the Head of
the Fees Office. "That advice was perfectly reasonable."
Mr Mackay said that he did not think then that the advice
was wrong "and I don't think so now." He said
that he did not recall saying, as he was quoted in the Guardian
on 14 May 2009 as saying of his arrangements, "Looking
back now, it does look strange". On that day, when he
had resigned as adviser to the Rt Hon David Cameron, "I
was in the middle of a media scrum. If the Guardian say
I said it, I accept that I did. There was a complete melee."
Mr Mackay said that "strange" was "not
a bad word—better than the other descriptions."
77. I said that the arrangements had ended up with
neither Mr Mackay nor Ms Kirkbride paying for their main homes,
and asked why he had not thought that strange at the time. Mr
Mackay said he did not accept that it was strange. "I
could have been married to a head of a company or a head teacher
whose house was paid for separately, and I could still have claimed
for my second home." Mr Mackay accepted that whatever
advice he might have been given, it had been his personal responsibility
to act within the rules of the House. "As a Member of
Parliament, every claim is your responsibility." He
said that Members are busy people, and that is why he had
taken advice. No warning bells had jangled when he had decided
on this arrangement, and that was why what had happened on 14
May 2009 was so "horrendous".
78. To the suggestion that his London home was his
main home, Mr Mackay said that he did not accept that the London
home was a more substantial property. Its square footage was probably
smaller, and he said that I could not go on the valuation, as
many MPs would have London flats which were worth more than their
properties elsewhere in the UK. "Both are substantial
homes and all three of us spent a lot of time in both."
He himself had spent slightly more time in Bromsgrove
because he had the additional responsibilities to his two relatives
and the property portfolio which he oversaw. He had not thought
one way or the other about the possibility that he could have
identified his main home differently, but he would not then have
been able to claim for his Bromsgrove property. "The idea
that Members spend ages thinking about these arrangements is wrong."
Mr Mackay said that he considered that he acted within both
the letter and spirit of the rules. "I took advice from
the Fees Office and I felt it was all straightforward." Mr
Mackay continued, "Our circumstances were unusual. We
were the only married MP couple without coterminous seats. We
were an 'odd couple' ... If you had coterminous seats you
would have one home straddling the two constituencies and one
in London."
79. Mr Mackay said that he did not recall what he
meant by his reported comment in the Guardian of 14 May
2009 that, "I have clearly made an error of judgement
for which I profusely apologise..."[92]
He had done seven separate live interviews on
that day. "I had a mass of journalists around me and I
was asked lots and lots of things." Looking back he
did not feel that he had made an error of judgement. "There
was no moment when I sat down and thought that I had made an error.
The letter from the Director of Strategic Projects is very powerful.
We had every reason to have comfort." He said that he
had had a busy parliamentary career. "I was a pairing
whip, chief whip, a senior political and parliamentary adviser;
I had a large and vibrant constituency and two families to look
after. Did I have time to sit down and consider this and was it
reasonable to have done so? Was it something I should have thought
about? All my training was to seek advice on what to do from the
person at the top. That is what I did."
80. As to whether he considered that he had made
a wrong decision, Mr Mackay said that "I didn't manufacture
a mortgage and claim for that; I didn't claim for a house a hundred
miles away and pretend to be ill. I kept my expenses in good order
in every possible respect. Sir Thomas Legg found nothing wrong
except this. I made sure I claimed the correct amounts for council
tax and that I submitted receipts." Mr Mackay said that
he had believed, and still believed, that he had been acting correctly.
To the argument that the Green Book could not have intended a
Member to be relieved of the cost of their main home, Mr Mackay
said that the Green Book was silent on that as on many other points.
Mr Mackay said, "Would it have been wrong for me to have
claimed for a second home if I had been married to someone whose
home was supplied by a wealthy relative or someone she worked
for?" He said that he did not draw a distinction between
that case and the claims he made. He did not accept that the taxpayer
funded both his houses. "In our case, the taxpayer has
assisted with the funding, with the mortgage interest. The taxpayer
has not funded them." Mr Mackay said he believed that
his claims were above reproach.
81. Mr Mackay said that he did not believe that his
actions had brought the House of Commons and its Members generally
into disrepute, although the Telegraph's expenses coverage
had done so. "We have paid a very high price for what
some people think is an error of judgement, both in career terms
and in the substantial sum of money we repaid. In my wife's case
the appeal to Sir Paul Kennedy was rightly granted, but we still
repaid the best part of £60,000. I don't believe it was right.
But I believe in the rule of law. I always said I would repay
what I was asked to even if I didn't believe I had done anything
wrong." He added that "We have been under double,
now triple jeopardy. If this goes to a report to the Committee,
I would like you to include in the evidence our correspondence
on this."
82. Mr Mackay said that he was "happy"
to answer his wife's case in respect of the claims which enabled
them to have an additional bedroom added to what he considered
to be his main home on the basis of his wife's ACA claims. "She
had taken advice from the most senior adviser in the Fees Office.
It was quite clear that it was allowed to extend the property
to allow a child to have his own bedroom after a certain age.
We increased the mortgage to do this but there were greater costs
that we incurred. Sir Paul did not uphold Sir Thomas Legg's views
on this." To the question whether it worried him that
he was making substantial improvements to his main home, Mr Mackay
said that the arrangement was "entirely within the rules,
it was clear that it was allowed to build an extension for this
purpose. We had no reason to think of that."
83. On 9 June, I received an e-mail from Mr Mackay.[93]
He noted that I had questioned whether it was legitimate for a
Member to claim financial support from the taxpayer for both his
homes. He suggested that I might wish to consider press reports
that senior Ministers claimed ACA whilst also living in "grace
and favour" accommodation entirely funded by the taxpayer.
"It appears that in some cases there was 'flipping'
and in others the 'third' home was sold. As a consequence
in each case the taxpayer was funding both homes."
84. I wrote to Mr Mackay on 10 June.[94]
I noted that when we met for the interview I had said that I had
not taken evidence from the Head of the Fees Office who was in
post in 1997, since I had not considered that necessary. I said
that I had now reviewed Mr Mackay's oral evidence, and had noted
the emphasis which he had put on his discussion with this former
Head of the Fees Office. I told Mr Mackay that I had concluded
that I ought to put the points he had made to me at interview
to this official, to see if he was able to confirm Mr Mackay's
recollection of the 1997 discussion.
85. I also raised with Mr Mackay one further matter
which had arisen from his oral evidence. He had confirmed that
he had moved to his current Westminster home in September 1999.
That had been some two years after his discussion with the Fees
Office in September 1997. I said that Mr Mackay's evidence was
that during that meeting he had described the accommodation in
his current London home; that would clearly not have been possible.
I asked Mr Mackay to confirm that in fact he had described the
accommodation in his previous London home, and to let me know
what that accommodation was.
86. Mr Mackay responded to me in an e-mail of 17
June,[95] saying that
the house was, like his current home, also a townhouse in central
London with three bedrooms, two bathrooms and two reception rooms.
87. Meanwhile I had written on 10 June to the official
who had at that time been Head of the Fees Office, seeking evidence
about the reported 1997 discussion.[96]
I asked him for his comments on the evidence which Mr Mackay had
given me about the discussion, and which I summarised in my letter.
I told him that Mr Mackay's clear recollection was that he had
then recommended that Mr Mackay should nominate the home in Mr
Mackay's wife's constituency as his main home and claim ACA on
the Westminster property. I said that I appreciated that this
was now quite a long time ago and that he would have had many
meetings with Members at that time. But in view of the emphasis
that Mr Mackay had put on his meeting with him and the advice
he had reportedly given, I asked him if he could confirm or otherwise
modify Mr Mackay's recollection of the meeting.
88. The former Head of the Fees Office responded
by telephone to my office on 17 June, and agreed a transcript
of that response on 18 June.[97]
He told me that he could confirm that Mr Mackay had sought his
advice concerning his changed circumstances after his marriage
to Ms Kirkbride in August 1997. He said that their meeting could
have been early in September because he had been out of the country
from 15 September to 10 October 1997, but he had no diary reference
for Mr Mackay for 1997.
89. The former Head of the Fees Office said that
he did, however, recall advising Mr Mackay that requirements for
claiming ACA were dependent on which home was deemed to be the
main home. Where a Member had more than one home, he said that
this was "entirely based on the facts as to the nights
spent in one home more than another, and then claiming for the
other home on expenses incurred 'wholly, exclusively and necessarily'
on overnight stays away from the main home..."
90. The former Head of the Fees Office said that
Mr Mackay had always deemed his main home as London (Westminster)
and could therefore claim for expenditure incurred in his constituency
(Bracknell). The reference to being on the electoral roll would
normally have determined the main home designation. He could not
recall Mr Mackay informing him that he (Mr Mackay) should nominate
the home in his wife's constituency because he did not believe
that they had set up their home in [Bromsgrove] that early in
their marriage. "Therefore I could not have advised him
to claim Additional Costs Allowance for London (Westminster)."
91. The former Head of the Fees Office said that
Ms Kirkbride had not been present at any meeting he had had with
Mr Mackay. He had interviewed Ms Kirkbride on the morning of 2
June 1997 after she was elected at the General Election of 1 May
1997 and Ms Kirkbride had informed him that she would be marrying
Mr Mackay in early August 1997. He said that "I emphasized,
particularly, the requirements for the Additional Costs Allowance
and if her home was to be in London then she could claim for expenditure
incurred in her constituency (Bromsgrove). I recall highlighting
the requirements of defining exactly what was to be the main home.
I do not recall Ms Kirkbride even mentioning [the Bromsgrove
property]."
92. The former Head of the Fees Office said that
he knew that Ms Kirkbride's induction interview paper had been
filed in her personal file, signed by himself on 2 June 1997.
He also said that it had been his habit to insert notes in Members'
personal files whenever he had had meetings with Members, or advised
them during a telephone conversation as to whether or not a Member
could change recorded information on any allowance he or she was
claiming. "Unfortunately Members' files were destroyed
during the move from [one office to another] ... so my
assertions cannot be confirmed."
93. He said that he could not imagine that Mr Mackay
and Ms Kirkbride would have had different main homes, and so Ms
Kirkbride's main home would also have been her constituency, "hence
both would be entitled to claim for Additional Costs Allowance
but for London, not each home separately." The former
Head of the Fees Office said that "my recollection of
advice given to Mr Mackay, and Ms Kirkbride for that matter, does
not concur with Mr Mackay's as stated in his evidence to you."
He also said that "when the debacle of Members' expenses
broke last year, Mr Mackay rang me at home at 9.15am on the very
day he gave an interview to the television (Sky I believe). He
wanted me to provide authority (retrospectively) stating that
I personally as Accountant (Head of the Fees Office) had advised
him on his parliamentary allowances and that I had agreed with
all his actions as being within the rules. I advised him that
I was unable to do so and that I had retired in October 1998."
94. I wrote to Mr Mackay on 23 June, attaching a
copy of my letter of 10 June to the former Head of the Fees Office
and a copy of his evidence, signed on 18 June.[98]
I noted that the former Head's recollection of the advice he had
given him and Ms Kirkbride did not accord with Mr Mackay's evidence
to me. I asked Mr Mackay when he had started to live in his Bromsgrove
property, given the witness's belief that it was not until 1998.
95. I also noted the reference of the former Head
of the Fees Office to a telephone call in early May 2009 in which
he said Mr Mackay had asked him to provide "authority
(retrospectively)" to a statement that he had advised
him on his parliamentary allowances and that he had agreed with
his actions as being within the rules. I noted that the former
Head of the Fees Office had said that he had advised Mr Mackay
that he was unable to do this, and I asked Mr Mackay for his recollection
of the conversation, as well as confirmation of the date when
it had taken place. I also asked Mr Mackay why he had not previously
mentioned this telephone call and the response of the former Head
of the Fees Office, which would appear to have been relevant to
Mr Mackay's evidence.
96. Mr Mackay responded to me on 6 July.[99]
He told me that he had rung the former Head of the Fees Office
not to obtain "authority (retrospectively)" but
"to have him confirm my very clear recollection of our
conversation in September 1997." The former Head had
told him at that time that following evidence he had provided
in other cases involving Members and the Parliamentary Commissioner
he had been told by the "House Authorities" not
to speak to Members. The former Head had also told Mr Mackay that
as he had dealt with so many Members he could "no
longer recall the details of our case but would have left instructions
to be followed on file." As this exchange had not thrown
any further light on his case, Mr Mackay said, it had "never
occurred to me to mention it to you. Perhaps I should have done
so as it does clearly illustrate how I rightly relied on advice
from the then Head of the Fees Office."
97. Turning to the response to me from the former
Head of the Fees Office, Mr Mackay said that he could confirm
that he and Ms Kirkbride had moved into the Bromsgrove property
immediately on completion and had lived there "in some
discomfort" whilst refurbishment was carried out. He
also confirmed that throughout the period in question they were
both on the electoral rolls in Bromsgrove and Westminster.
98. I wrote to Mr Mackay on 6 July.[100]
I noted that I had now received two different recollections of
his meeting with the then Head of the Fees Office in September
1997, and asked him, therefore, whether he wished to modify in
any way his recollection of the discussion.
99. Mr Mackay responded to me in an e-mail of 13
July.[101] He told
me that he and Ms Kirkbride had moved into the Bromsgrove property
immediately on legal completion which, as he recalled, was in
September 1997, but that this could be confirmed in the Land Registry
records as he no longer had the paperwork.[102]
He told me, "I do not wish to modify in any way my clear
recollection of the discussion in light of what [the former
Head of the Fees Office] has told you. However I would comment
that there is only one clear factual disagreement. In the telephone
call of May 2009, I vigorously dispute that I asked for 'retrospective'
authority but instead asked him to confirm my very clear recollection
of our conversation in September 1997."
100. Mr Mackay also said that he believed that he
had confirmed that the recollection of the former Head of the
Fees Office had been mistaken in terms of when he and Ms Kirkbride
had purchased the Bromsgrove property. Mr Mackay noted that the
former Head had stated that he could not "imagine that
they would have different main homes". Whilst this was
contrary to this official's advice to him in September 1997, Mr
Mackay said that he did accept that—as the former Head of
the Fees Office had said to him during their telephone conversation
in May 2009—"after such a passage of time he could
no longer recall the details of our case. It could well be that
now after lurid press reports of our case this is the view he
holds today."
101. On 14 July I sent the former Head of the Fees
Office the responses I had received from Mr Mackay to his evidence
about his meeting with Mr Mackay in September 1997 and his telephone
conversation with Mr Mackay in May 2009, and sought his comments.[103]
102. The former Head of the Fees Office replied to
me on 18 July.[104]
In respect of the phone call of May 2009, he said that "My
inference of Mr Mackay's call was that he sought reassurance in
2009 of my advice to him of September 1997 and any authoritative
letter I may have retained since that date—a period of 11
years plus and hence 'retrospective'." On the issue of
Mr Mackay's residence in the Bromsgrove property, the former Head
of the Fees Office said that it appeared that the "critical
date here is indeed September 1997 which should, therefore, be
the commencement date of Andrew Mackay's claims for ACA expenditure
incurred wholly, exclusively and necessarily on the Westminster
home". He continued that this would also mean that from
the same date Ms Kirkbride should have claimed ACA for London
as her main home was in her constituency. He recalled that he
had spoken to Ms Kirkbride only on 2 June 1997—her induction
interview—some three months before the Bromsgrove property
had ever been mentioned. He concluded that "my earlier
evidence does not need to be changed except, perhaps, for the
deletion of the word 'retrospectively'. In which case Andrew
Mackay and I differ as to the advice I provided in 1997."
103. I wrote to Mr Mackay on 21 July.[105]
I noted that the former Head of the Fees Office stood by the substance
of his previous evidence. I said that while I would record that
witness's comments on his reference to "retrospectively",
I proposed to keep these words in his original evidence.
104. In an e-mail of 2 August Mr Mackay told me that
he was pleased that the former Head of the Fees Office "now
understands the date we moved into the Bromsgrove property which
means, not surprisingly given the passage of time, that his recollection
was incorrect. I also note that he thinks 'perhaps the word
"retrospectively" be deleted.'"[106]Mr
Mackay said that he had a very clear recollection of the advice
that official had given him in September 1997 "and that
is precisely why my first reaction was to ring him on that crucial
day in May 2009". Mr Mackay noted that I had sent the
former Head of the Fees Office only an extract from his e-mail
of 13 July. He said that, if that did not include the paragraph
concerning the evidence of the Director of Strategic Projects,
he believed this might have affected his answer to my question,
which referred to the suggestion that he had been influenced by
the press coverage.
105. I wrote to Mr Mackay on 3 August, explaining
that I had not sent to the former Head of the Fees Office the
final paragraph of Mr Mackay's e-mail to me of 13 July, referring
to the advice of the Director of Strategic Projects, because I
wanted the evidence of that witness about his conversations with
him, rather than any comments on the views of the Director.[107]
But, in view of Mr Mackay's suggestion that with that knowledge,
the answer in that witness's letter of 18 July might have been
different, I said I was now putting the matter to him. I said
that Mr Mackay's e-mail of 13 July quoted only part of the relevant
paragraphs of the Director's letter of 17 March and that I was
sending him the full relevant extracts.
106. I told Mr Mackay that the evidence from the
then Head of the Fees Office had identified for my inquiry his
May 2009 telephone call to him. I had not, of course, been aware
of that telephone call before I had received the witness's evidence
and so did not raise it in interview with Mr Mackay. I asked Mr
Mackay again why he had not told me about such an apparently important
telephone conversation which, he would have known, did not corroborate
his recollection of the advice he had received.
107. I wrote also to the former Head of the Fees
Office on 3 August, enclosing copies of the responses I had received
from Mr Mackay.[108]
I said that Mr Mackay's e-mail of 13 July had quoted part of a
letter from the Director of Strategic Projects in the Department
of Resources.[109]
I told the witness that the full relevant quotation was:
"I am afraid that we have not been able to
discover any records which would cast light on Mr Mackay's discussions
with the then head of the Fees Office in 1997 (that official retired
in 1998). Nor do we have any records which indicate that any later
consideration was given within the Department to the elections
which Mr Mackay and Ms Kirkbride made as to their main and additional
homes.
"The Department was certainly aware of the
arrangements in the sense that both Mr Mackay and Ms Kirkbride
made their declarations openly. I think that it is reasonable
for Mr Mackay to have inferred from this that the Department had
no difficulty with the arrangements."
108. In view of the remark in Mr Mackay's e-mail
to me of 2 August, I asked the former Head of the Fees Office
whether the evidence from the Director of Strategic Projects which
I had quoted above in any way caused him to modify his answer
in his letter of 18 July,[110]
or indeed any other part of his evidence.
109. The former Head of the Fees Office replied to
me on 8 August.[111]
On the question of the evidence provided to me by the Director
of Strategic Projects, and which I had shown him,[112]
the former Head said: "This evidence I had not seen previously
so it could not have affected my evidence in any way". He
said that there had been a "disposal of all the Members'
personal files maintained by the Fees Office when they moved ...
some time in 1999 or 2000. Hence there was no proper evidence
of action taken regarding Members' details—changes in addresses,
travel arrangements, office and employees—which covered
a period of more than 40 years."
110. The former Head of the Fees Office noted that
Mr Mackay had stated that both he and Ms Kirkbride "declared
openly their positions in respect of claiming ACA and that the
Director of Strategic Projects felt that, in the absence of any
comment from any official, it was reasonable for Mr Mackay to
infer that all was well. If those declarations were merely their
separate monthly claims and in the absence of any knowledge of
what was or not agreed in September 1997, plus the added absence
of any prior audit (another change brought in by the Director-General
of Resources ...) I fail to see how that inference could be made."
The former Head said that he did not even know whether anybody
in the office responsible for "payments" would
necessarily have known that Mr Mackay and Ms Kirkbride were indeed
Mr and Mrs Mackay. "Nor do I know whether or not any subsequent
examination of their particular ACA claims were carried out by
the Compliance Section after their payments had been made."
111. The former Head of the Fees Office continued
by saying that Mr Mackay had asserted throughout that his main
home and that of Ms Kirkbride had been the Bromsgrove property
since September 1997. "It follows, therefore, that both
should have stated so and claimed for the appropriate expenditure
incurred on their London home. It seems to me that it is inconceivable
for each of them to have separate 'main homes' and thus
be entitled to claim for both of their homes. I do recall that
at no time during the period October 1997 to September 1998 did
either Member send their ACA claims to me personally to ensure
that they were complying with whatever advice I may have given.
... In the light of all the evidence now supplied by me—and
Mr Mackay's comments thereon—it is inconceivable to even
suggest that I could have—or would have— advised Mr
Mackay to take the action he has taken."
112. The former Head of the Fees Office said that
the action taken by Mr Mackay and Ms Kirkbride reflected that
whilst Mr Mackay's claims could be accepted as correct, in his
view Ms Kirkbride's were incorrect, based on "the false
premise that her main home is in London and that she is entitled
to ACA in respect of the expenditure incurred on their home in
... her constituency. There is, therefore, no reason for me to
change my evidence, for Mr Mackay is wrong in his recollection
of my advice given in September 1997".
113. I replied to the former Head of the Fees Office
on 12 August.[113]
I said that in view of his comments on the extract from the evidence
of the Director of Strategic Projects, I would be asking the Director
for his response to those points. I told the former Head of the
Fees Office that his letter went beyond the matters which I had
raised with him and, indeed, beyond the matters which I was considering
in this complaint. I said that I had noted his comments on whether
Mr Mackay and Ms Kirkbride each correctly identified their main
home, but that I would need to form my own conclusions on whether
Mr Mackay properly identified his main home on the basis of all
the evidence I had received.
114. On the same day, 12 August, I wrote to the Director
of Strategic Projects, attaching the evidence I had received from
the former Head of the Fees Office.[114]
115. I wrote also to Mr Mackay on 12 August.[115]
I attached a copy of the response of 8 August from the former
Head of the Fees Office.[116]
I noted that he had concluded that there was no reason for him
to change his evidence, for Mr Mackay was "wrong in his
recollection of my advice given in September 1997."
116. Mr Mackay replied to me by e-mail on 13 August.[117]
He said that it would be best to respond now to "certain
inconsistencies and inaccuracies" in the response to
me from the former Head of the Fees Office. Mr Mackay said that
he felt certain that he had not implied in his previous reply
to me that the Bromsgrove property had been the main home for
both him and Ms Kirkbride. It had never been set out that married
couples should always have the same main home, hence the rule
changes voted through in May 2009.
117. Mr Mackay said that it was "surprising"
that the former Head of the Fees Office "during the full
first year of our claims ... raised no queries". Mr Mackay
noted that the former Head of the Fees Office suggested his staff
might not have been aware he and Ms Kirkbride had been married.
"Surely this is inconceivable bearing in mind the nature
of the 'Westminster village' and considerable publicity
when we married..." Mr Mackay repeated that he was "absolutely
clear what advice [the former Head of the Fees Office]
gave me in September 1997 and would confirm this under oath. That
is why when these issues were first raised with me I immediately
contacted him to confirm that advice."
118. On the same day, 13 August, Mr Mackay sent me
a second e-mail in answer to my question why he had not told me
about his conversation with the former Head of the Fees Office
in May 2009.[118] He
said that when he had rung the former Head of the Fees Office
in that month he had told Mr Mackay that after giving informal
evidence in another case he had been told by "the House
Authorities" not to speak to Members. Mr Mackay noted
that the former Head had added that he could not recall what advice
he had given to Mr Mackay but that afterwards he would have made
a file note to assist his staff. Mr Mackay said that as this
had made no material difference to his case it had never occurred
to him to mention the conversation.
119. My office wrote to the former Head of the Fees
Office on 20 August providing details of Mr Mackay's e-mails of
6 July and 13 August and seeking the former Head's comments.[119]
This letter noted that in his 6 July e-mail Mr Mackay had said:
"He [the former Head of the Fees Office] told
me that following evidence he had provided in other cases involving
Members and the Parliamentary Commissioner he had been told by
the House Authorities not to speak to Members. He added that anyway
as he dealt with so many Members he could no longer recall the
details of our case but would have left instructions to be followed
on file."[120]
Mr Mackay's e-mail of 13 August read: "When I rang [the
former Head of the Fees Office] in May 2009 he told me that
after giving informal evidence in another case he had been told
by the House Authorities not to speak to Members. He added he
could not recall what advice he gave me but afterwards would have
made a file note to assist his staff."[121]
120. My office wrote also to the Director of Strategic
Projects on 20 August, telling him of Mr Mackay's comments on
the statements made by the former Head of the Fees Office".[122]
At my request they also asked the Director when it had become
a requirement for Members to indicate their second homes on each
relevant claim form and to sign a form designating their main
and second homes.
121. The Director of Strategic Projects responded
to me on 24 August.[123]
He said that he wished to correct some of the references made
by the former Head of the Fees Office. He said that "There
was no wholesale disposal of Members' personal files, though it
is possible that documents were not retained which ought to have
been. This may explain the absence of any record of a conversation
between Mr Mackay and [the former Head of the Fees Office]."
122. The Director told me that no policy of "absence
of prior audit" had been introduced by the current Director
General of Resources. The Director noted that in my letter to
him, I had said that the former Head of the Fees Office had said
that "he does not know whether anybody in the office would
necessarily know that Mr Mackay and Ms Kirkbride were married."
In fact, the Director noted that the former Head of the Fees Office
had said that he did not know "whether anybody in the
office responsible for 'payments' would necessarily know
that Mr Mackay and Ms Kirkbride" were married. This was
an important difference. "The junior officials responsible
for paying allowances may indeed not have known about such matters,
but the framework within which allowances were authorised was
set by more senior officials who would have known when Members
were married to one another."
123. The Director said that from the extract which
I had sent him, he was not clear whether the former Head of the
Fees Office contested Mr Mackay's recollection of their September
1997 discussion. But even if no such discussion had taken place,
"it should have been incumbent upon senior managers in
the then Fees Office to look at unusual circumstances such as
those of two Members married to one another so as to ensure that
they were properly advised and that the purpose of ACA was being
properly followed."
124. He noted that Sir Paul Kennedy accepted (in
relation to Ms Kirkbride) that "the Fees Office did know
what was going on because it authorised payments in respect of
your claims". The Director said that he respectfully
agreed with Sir Paul's view.
125. The Director said I had referred to Mr Mackay's
evidence in my letter of 21st January 2010, that Mr Mackay had
not informed the Fees Office that he had been sharing a property
with another Member who was his wife. He said he had inferred
that this statement had been made in response to a question asking
Mr Mackay whether he had made a formal notification when the request
to do so first appeared in the Green Book of 2003. "Despite
him not having done so, the clear implication to me of the early
part of his letter of 21st January is that he openly discussed
his and Ms Kirkbride's living arrangements with [the then
Head of the Fees Office]."
126. The Director said that in sum, the evidence
of the former Head of the Fees Office did not cause him to change
his original conclusions that it had been reasonable for Mr Mackay
to have inferred that the Department had no difficulty with the
arrangements. He noted that I had asked for a response to the
former Head's suggestion about a Compliance Section check, and
assumed that the former Head was referring to a section in the
Department established in 2005 and known as the Quality Assurance
Team. "During 2007 and 2008 this team was tasked to examine
the claims of about a fifth of Members randomly chosen each year.
Neither Mr Mackay nor Ms Kirkbride was among the Members checked
during those years. The systematic examinations ceased in 2009."
127. The Director concluded that it had become a
requirement for Members to indicate their second homes on each
relevant claim form after the publication of the 2003 Green Book.
In 1997, Members had simply been required to provide details of
their main home on a nomination form that had been completed when
they were first elected. "However, if Members were concerned
about their arrangements, they could and did discuss the issues
which concerned them with senior managers in the Fees Office."
128. On 29 August the former Head of the Fees Office
gave me some more evidence in response to my office's letter to
him of 20 August.[124]
He noted that my letter included extracts from two e-mails from
Mr Mackay,[125] and
said that he preferred the version of 13 August "which
I believe is more accurate."[126]
This version said:"When I [Mr Mackay] rang
[the former Head of the Fees Office] in May 2009 he told
me that after giving informal evidence in another case he had
been told by the House authorities not to speak to Members. He
added he could not recall what advice he gave me but afterwards
would have made a file note to assist his staff." The
former Head of the Fees Office said that he could not recall the
exact words he had used [in his conversation with Mr Mackay] in
May 2009 but "I know that I told Mr Mackay that I had
retained no papers."
129. I wrote to the former Head of the Fees Office
on 2 September.[127]
I noted that he had accepted as accurate the statement that he
had told Mr Mackay that he had been told by the House authorities
not to speak to Members. I also noted that the former Head could
not recall what advice he had given Mr Mackay (presumably in 1997),
although he would have made a file note of the conversation. I
said that I would, of course, reflect this conclusion to the evidence
he had given me, since, while he had stated that he knew what
advice he would have given, and that he would not have given Mr
Mackay the advice he recalled, it seemed clear that he was not
able to recall the advice which in fact he gave him at the time.
130. I wrote to the Director of Strategic Projects
on 2 September.[128]
I noted that from 1997 to 2003 Members had been required only
to identify their main home on a nomination form completed when
they were first elected. I asked whether Members identified the
location and address of their main home or their second home in
the regular claim forms they submitted against the ACA. If not,
I said it would appear that while the Department might have seen
in 1997 that Mr Mackay and Ms Kirkbride had different main home
nominations, they would not have known from the nominations on
their forms until 2003 that Mr Mackay had been making claims on
a property which was also Ms Kirkbride's main home (and vice versa).
I asked the Director to confirm his understanding of the position.
131. The Director of Strategic Projects responded
on 6 September, confirming that before 2003 Members had been required
to identify where their Additional Costs Allowance had been incurred,
but that they had not been required to identify the location or
address of their main or second home in the regular claims they
submitted.[129] At
the operational level, therefore, he said that departmental staff
would not have been aware that Mr Mackay was making claims on
a property which was also Ms Kirkbride's main home.
132. I wrote to Mr Mackay on 8 September enclosing
copies of relevant correspondence.[130]
I noted that the Director of Strategic Projects had concluded
that the evidence from the then Head of the Fees Office had not
caused him to change his original conclusion that it was reasonable
for him (Mr Mackay) to have inferred that the Department had no
difficulty with his arrangements.
133. I also noted that the responses of the Department
of Resources suggested that it was not fully accurate for Mr Mackay
to say that from 1997 his (and his wife's) second homes were put
on each claim form. I said it would appear that this had become
a requirement in 2003, and that before that, Members would have
identified their second home on their nomination form, but had
not been required to give the addresses of their main or second
home on each of their regular claim forms. I said that it therefore
seemed that it would not have been immediately apparent from the
claim forms that Mr Mackay had been making claims for his second
home on a property that was also his wife's main home.
134. Mr Mackay wrote to me on 12 September.[131]
He said that he was "heartened" that the Director of
Strategic Projects had again "confirmed it was reasonable
for us to infer that his Department had no difficulty with our
arrangements. I accept his advice that it only became a requirement
to put the second home address on claim forms from 2003".
Mr Mackay added that he recollected he and his wife submitting
mortgage interest details and council tax demands prior to 2003,
even though it was not then a Green Book requirement.
135. Mr Mackay said that he would rest his case on
the following points. Notwithstanding responses from the former
Head of the Fees Office, he was very clear that the former Head
of the Fees Office had advised him that "my wife and I
should declare different second homes. I believe my immediate
reaction in May 2009 to contact him for confirmation adds considerable
weight to the sincerity of my belief." Mr Mackay said
that as the Director of Strategic Projects had twice testified,
"I assumed that as the Fees Office were fully informed
of our main and second home arrangements—but never queried
or challenged them—they must have been acceptable."
In addition Mr Mackay said that he had, of course, satisfied himself
that these arrangements met with the criteria for claiming second
homes set out in the Green Book. Finally "you have on
a number of occasions asked whether I felt my arrangements met
with the 'spirit' of the rules as they were meant to be
applied. I did consider this matter and believed that as two Prime
Ministers, the then Speaker of the House and a number of other
MPs, claimed ACA on the only property they owned and maintained
at their own expense—whilst having access to another property
elsewhere—it was therefore an acceptable arrangement for
the House Authorities."
Findings of Fact: Rt Hon Andrew
Mackay
136. Mr Mackay was elected as Member for Bracknell
in May 1997, having been Member for East Berkshire since 1983.
Ms Kirkbride was elected as Member for Bromsgrove in May 1997.
They were married in August 1997. They both retired from the
House at Dissolution in April 2010.
137. In 1997, Mr Mackay and Ms Kirkbride jointly
owned a home in central London. In September 1999
Mr Mackay and Ms Kirkbride sold that property and jointly bought
a terraced house in central London with three bedrooms, three
reception rooms, two bathrooms and a study. Mr Mackay's evidence
is that the purchase price of that property was £850,000.
At that time they took out in respect of that property an interest-only
mortgage of £200,000 which they still maintain on that basis.
138. Mr Mackay never had a home in or near his own
constituency. In September 1997 Mr Mackay and Ms Kirkbride jointly
purchased a flat in Ms Kirkbride's constituency for £75,000.
The accommodation in that Bromsgrove property at that time comprised
two double bedrooms, a sitting room, dining room, kitchen, and
two bathrooms. In 2004, Mr Mackay and Ms Kirkbride took out an
interest-only mortgage on the Bromsgrove property, which they
still maintain on that basis. The Bromsgrove property was put
on the rental market in the spring of 2010.
139. In late 1997 Mr Mackay designated the Bromsgrove
property in his wife's constituency as his main home, and designated
his then London property as his second home. When Mr Mackay bought
his new London property in 1999 he designated that as his second
home. From 1997 Ms Kirkbride designated the London property she
shared with Mr Mackay, her husband, as her main home and their
Bromsgrove property as her second home.
140. From 1997 onwards Mr Mackay claimed against
his ACA for the full mortgage interest and other costs, first
on the London property he owned in 1997 and then on the London
property he bought in 1999. The breakdown of his claims against
the ACA provided by Mr Mackay indicates that in the five years
from 2004-05 to 2008-09, he claimed and was paid for his mortgage
interest a total of £49,230. Mr Mackay's estimate of his
pattern of overnight stays for the calendar year 2009, which he
believes would also broadly reflect his sleeping patterns in the
financial years in question, would indicate that he spent 155
nights in the Bromsgrove property, 139 nights at the London home,
54 nights on holiday, nine nights on parliamentary business abroad
and eight nights in his constituency.
141. It became a requirement for Members to indicate
their second homes on each relevant ACA claim form after the publication
of the 2003 Green Book. In 1997, Members were simply required
to provide details of their main home on a nomination form that
was completed when they were first elected. Documentation was
not required to support ACA claims and so, as a general rule,
the Department had no knowledge of the location of Members' second
homes.
142. Mr Mackay's evidence is that in or around September
1997 he had had a discussion with the then Head of the Fees Office,
who had recommended that he should designate the Bromsgrove property
as his main home and claim ACA on the London property. Mr Mackay
said that that official had recommended also that Ms Kirkbride
should designate their Bromsgrove property as her main home. The
former Head of the Fees Office has told me that his recollection
of the advice given to Mr Mackay does not concur with Mr Mackay's.
While he does not recall what advice he gave, he does not accept
that he would have given the advice referred to by Mr Mackay.
The former Head's view is that it was inconceivable for Mr Mackay
and Ms Kirkbride to have had separate main homes and thus be entitled
to claim for both of them.
143. In his Review of ACA claims Sir Thomas Legg
found that, in making their arrangements, Mr Mackay and Ms Kirkbride
had obtained a financial benefit unintended under the Green Book
rules and Sir Thomas concluded that therefore they had acted contrary
to the principles governing the rules.[132]
Sir Thomas recommended a repayment by Mr Mackay of £ 29,243
in respect of mortgage interest, and that sum was duly repaid.
Sir Thomas's findings were subject to an appeal to Sir Paul
Kennedy, who dismissed Mr Mackay's appeal.[133]
Sir Paul Kennedy noted Mr Mackay's statement that the way in which
he and Ms Kirkbride designated their homes was in accordance with
advice given by the Fees Office. Sir Paul commented that, if so,
the advice was plainly mistaken, and that Mr Mackay should have
recognised it to be mistaken. Sir Paul said that Mr Mackay and
Ms Kirkbride had lost sight of the purpose of ACA, which was to
assist Members to fund the cost of accommodation when they needed
a second home in order to fulfil their duties. ACA was never intended
to relieve Members of the costs of their main home, and Mr Mackay
and Ms Kirkbride had operated it in such a way as to achieve that
result.
144. The Department says that it has not been able
to discover any records which would cast light on Mr Mackay's
discussions with the Fees Office in 1997, although it was certainly
aware of the arrangements in the sense that both Mr Mackay and
Ms Kirkbride made their declarations openly. The Department says
that junior officials responsible for paying allowances may not
have known that Mr Mackay and Ms Kirkbride were married, but the
framework within which allowances were authorised was set by more
senior officials, who would have known when Members were married
to one another.
145. The Department says that, although there was
no wholesale disposal of Members' personal files, it is possible
that documents were not retained which ought to have been. They
believe that this may explain the absence of any record of a conversation
between Mr Mackay and the former Head of the Fees Office.
146. The view of the Director of Strategic Projects
at the Department of Resources is that it was reasonable for Mr
Mackay to have inferred from this that the Department had no difficulty
with the arrangements. The Department has said, however, that
it has no reason to dissent from the conclusion of Sir Thomas
Legg and Sir Paul Kennedy that Mr Mackay was not within the rules
in claiming second home allowance for his London home. The Director
of Strategic Projects has expressed his regret that the original
advice of the Department on this point, and its subsequent inaction,
might have given Mr Mackay comfort in his claims.
147. Mr Mackay considers that the Bromsgrove property
was a natural main home for him. He believes that he was correct
in making that designation because he was acting on advice from
the then Head of the Fees Office and because of the number of
nights he spent in the Bromsgrove property. Mr Mackay also argues
that he has close links to, and significant family responsibilities
in, the Bromsgrove area. Mr Mackay does not accept that the London
home is a more substantial property than the Bromsgrove home,
which is the largest apartment in a listed building and similar
in square footage to the London property, although the valuation
is higher for the London home because central London prices are
higher than North Worcestershire prices.
148. Mr Mackay notes the acknowledgement of the Department
that he and his wife made their declarations openly, that it was
reasonable for him to think that the Department had no difficulty
with the arrangement and that the Fees Office's inaction gave
him comfort in making the claims. Mr Mackay's evidence is that,
even though it was not required by the rules, prior to 2003 he
sent the Department both mortgage interest details and council
tax bills. The Department is not able to corroborate this since
Mr Mackay's records over this period have not been retained.
Mr Mackay's evidence is that he did not feel he was doing anything
wrong in making his ACA arrangements, as he had taken the advice
of the person in charge at the very top of the Department.
149. Mr Mackay's view is that as senior Ministers
claimed ACA on the only property they owned and maintained at
their own expense, whilst having access to "grace and
favour" accommodation funded entirely by the taxpayer,
and because he believes other Members claimed on the only property
they owned and maintained while having access to another property
elsewhere, his own arrangement should have been acceptable. He
believed throughout the period, and believes now, that his arrangement
was fully within the letter and spirit of the rules of the House.
150. Mr Mackay has said that he has faced triple
jeopardy, as the issue has already been adjudicated twice, by
Sir Thomas Legg and Sir Paul Kennedy. He considers that my inquiry
into the complaint should not have been pursued.
My Inquiries: Ms Julie Kirkbride
151. When I wrote to Ms Kirkbride on 5 November 2009
I told her that the essence of the complaint against her was that
she had made claims against her ACA for costs which were not wholly,
exclusively and necessarily incurred for the purpose of performing
her parliamentary duties.[134]
I asked her which home she had identified as her main home, and
which home as her second home for each financial year from 2004-05
to 2008-09, together with the relevant dates, the purchase costs
of each home and the details of any mortgages which she held or
had held on these homes since 2004-05, the nature of her accommodation
in her second home in her constituency, and who had lived there
during the period in question, together with dates.
152. I asked Ms Kirkbride what accommodation was
available to anyone living at the property who was not her partner
or her dependent children, what arrangements were made for her
brother to live at the property, the reasons for doing so, and
whether she had reflected the costs of his accommodation in the
claims she had made against the ACA. I asked her whether she had
lodged with the Department any agreement with her brother as her
tenant or lodger. I asked for information about the ACA claims
she had made for each financial year from 2004-05 to 2008-09 inclusive,
together with the main categories against which she had claimed,
identifying her mortgage interest claims and what proportion of
her total mortgage they represented. I also asked her whether,
and if so why, she had extended the property, whether this was
on account of the presence of her brother living in the property,
the total cost of this work and whether she had claimed for any
of this from the ACA and, if so, how much. I asked whether, and
if so when, she had informed the Department that she was claiming
ACA in respect of a property which she shared with another Member,
namely Mr Mackay, and whether she had consulted the then Department
of Finance and Administration about any aspect of her arrangements.
If so, I said it would be helpful to have details of that consultation,
together with any documentary evidence she might have.
153. Following the correspondence I have already
described, concerning the relationship between this and other
inquiries,[135] Ms
Kirkbride wrote to me on 21 January 2010.[136]
She said that since 2004 she had nominated the property in Bromsgrove
as her second home and the London property as her main home. She
and Mr Mackay had bought the London property for £850,000
in 1998 with a mortgage of £200,000, which they still maintained
on an interest-only basis. They had bought the Bromsgrove property
in 1997 for £75,000 and spent "more than double the
purchase price" on restoring it. Along with Mr Mackay
she had taken out an interest-only mortgage of £180,000 on
that property in 2004, and had further extended that mortgage
by £50,000 in April 2008 to cover the cost of an extra bedroom
"to meet our family's needs".
154. Ms Kirkbride said that there was no separate
accommodation in the Bromsgrove property for a tenant. It had
three bedrooms "so that we can accommodate a child carer
to allow me to carry out my parliamentary duties." Ms
Kirkbride said, "My brother does not live at [the
Bromsgrove property], he stays in our home for the express
purpose of providing childcare for our son. When he is not needed
to look after [our son] he has other responsibilities elsewhere,
including looking after our ... mother in [name of town].
I considered my brother's care of [our son] entirely consistent
with the Green Book's definition of a necessary function to allow
me to carry out my parliamentary duties and as such I did not
factor in his presence in my ACA claims—after all, he was
not receiving a benefit, he was not adding to the cost of the
property and I could not carry on as an MP and be a fit and proper
mother without his help!" Ms Kirkbride confirmed that
she and Mr Mackay had an interest-only mortgage and she attached
a breakdown of her ACA figures.[137]
This breakdown indicated that she claimed sums in respect of mortgage
interest ranging from £8,988 in 2004-05 to £13,917 in
2008-09: a total of £54,344 over the five-year period.
155. Ms Kirkbride told me that she and Mr Mackay
had bought the property before their son was born in 2000. When
her son was very little her brother (and other child carers who
had looked after her son when he was not available) shared a bedroom
with him. She said that her husband and she felt it was inappropriate—"and
particularly so for public figures who would attract interest/gossip—that
our prepubescent child should continue to share his room with
an adult." As the family still needed childcare they
had thought the best course of action was to move to a bigger
property—"and of course, had we done so we would
have attracted much less interest". However, they had
had the possibility of extending their existing apartment and
so they did this instead, creating a third bedroom. Ms Kirkbride
told me that in total they had spent in excess of £60,000
on the extension and took out a mortgage of £50,000 to fund
the work. She said that she had discussed the matter with an official
in the Fees Office and explained their reasons for needing a third
bedroom. Ms Kirkbride said that the House of Commons rule at the
time was that mortgages could not be extended to fund extensions
to a property unless there were family reasons for doing so. Ms
Kirkbride said that the Fees Office official had said that "my
circumstances fitted the criteria in which an extension of the
mortgage could be authorised and the Fees Office duly paid the
interest on my new mortgage of £230,000 from my ACA. I wrote
a note to the Fees Office which is lodged with them confirming
this arrangement." Ms Kirkbride said she wished to reiterate
that this third bedroom was created to enable her to accommodate
a flexible child carer who "happens to be my brother most
of the time, but not all of the time. If my brother had stopped
providing childcare, the bedroom would be used by somebody else.
He did not live in the property all the time, but was there at
the same time as we were there for the purposes of providing childcare.
As such, I do not think it reasonable to say that this bedroom
was built for my brother."
156. Ms Kirkbride said that she had not informed
the Fees Office that she was sharing a property with another Member
who was her husband. She said she made "the reasonable
assumption that this rule was to identify non-related MPs who
had come to private agreements to share properties and did not
apply to those Members where it was public knowledge that they
were married to each other." She confirmed that she
had consulted the then Department of Finance and Administration
about her arrangements and had "dropped a note to the
Fees Office confirming our conversation."
157. Ms Kirkbride said that she hoped I would be
satisfied that she had no further case to answer with regard to
the complaint about her brother's involvement in her childcare
arrangements. She commented that "the House of Commons
spends a great deal of time agonising as to why few women, and
even fewer women with children, become MPs. I can tell them that
one of the reasons is that it is massively difficult to reconcile
the incredibly busy (and peripatetic) demands on one's time as
an MP with being a proper mother to children. In my case, I am
faced with the need for six days and evenings a week childcare
and as such, if my option had been to leave [my son] with
bought in childcare all that time I would not have considered
it fair to him to stand for Parliament." As it was, she
said she thought that she had been lucky to have Friday and Saturday
covered by her own brother, who would give her son the care he
needed in her absence and whose desire to care for her son she
"did not need to question" whilst she was in
Bromsgrove, giving her constituents the attention they had the
right to expect. She concluded that as it had turned out, "what
I thought were entirely appropriate arrangements have become fodder
to a baying press and vexatious complainers and I can only hope
that after many months of this same issue being considered by
Sir Thomas Legg that you will finally allow the matter to rest
and let me get on with my new life outside Parliament."
158. On 26 January I wrote to Ms Kirkbride, asking
her to clarify a number of points.[138]
I said I had noted the description of the help which her brother
had given her in terms of childcare. Ms Kirkbride had referred
to other carers, and I asked her the dates during which her brother
(as opposed to other carers) provided the overnight childcare
for her son. I also asked her where her brother had had his main
residence and for an estimate of the number of nights a week which
her brother had spent overnight in her constituency home. I asked
Ms Kirkbride whether there was any basis to the suggestions in
the press reports that her brother was registered to vote at her
Bromsgrove address and that he gave it as his usual residential
address to Companies House.[139]
If that were true, I asked her to explain why he had been registered
to vote there and gave that address to Companies House, given
the use that she had told me he made of the property. I also asked
Ms Kirkbride to tell me whether her brother spent any time, including
any overnight stays, in the Bromsgrove property when she and her
son were not there.
159. I asked Ms Kirkbride about the arrangements
which she and her husband had made in staying overnight with their
son in her constituency property. I said she had noted that her
brother covered childcare on Friday and Saturday. I asked whether
she or her husband were there with their son on other nights of
the week and, if so, who covered childcare. Finally, I asked Ms
Kirkbride, as requested in my letter of 5 November,[140]
whether she had claimed from her ACA for the full mortgage interest
on her constituency home. If she had not done so, I asked her
what proportion of that interest had been represented by her claims.
160. On 4 February the findings of Sir Thomas Legg's
Review of past ACA payments[141]
and of Sir Paul Kennedy on ACA repayment appeals were published.[142]
The conclusions of Sir Thomas on the arrangements entered into
by Mr Mackay are set out in paragraph 48 above. Sir Thomas
recommended that Ms Kirkbride should make a repayment in respect
of mortgage interest of £29,243, and noted that this sum
had been repaid.[143]
Sir Thomas also noted that in May 2008, "Ms Kirkbride
extended the mortgage on her designated second home to fund the
construction of an additional bedroom, mainly for the use of her
brother to provide childcare for her family. The total interest
paid under the ACA to fund the additional loan was £2,584.26."
Sir Thomas concluded that "As these payments were used
to provide accommodation for a non-dependent family member, the
transaction was conflicted", and he recommended that
Ms Kirkbride should repay that amount. In considering Ms Kirkbride's
appeal against Sir Thomas's findings, Sir Paul Kennedy told Ms
Kirkbride "The edition of the Green Book which was current
at that time stated that ACA was not available to recover: 'interest
on any additional mortgages, advances or loans secured on the
same property unless required for the repair or improvement of
that property'. It seems to me that in your case there was
no problem, because the additional loan was used to improve the
property, and you tell me that before the work was undertaken
you explained to a senior Accounting Officer in the Fees Office
what you proposed to do and why. He then, as you put it, 'authorised
the extension of the mortgage'".[144]
161. Sir Paul continued, "I accept that by
2008 there were restrictions on transactions with family members.
ACA could not be used to meet the costs of a mortgage or for leasing
accommodation from a partner or family member (see paragraph 3.3.3
of the Green Book), but I see no reason why that should have been
extended to prevent you from recovering the costs
of an additional mortgage required to enable you to provide
a child carer's bedroom just because at that time it was envisaged
that the child carer would normally be your brother."
162. Accordingly, Sir Paul said that he was "satisfied
that there are special reasons in your individual case showing
that it would not be fair and equitable to require repayment of
£2,584.26 [in respect of interest on the additional mortgage].
I find no such reasons in relation to the sum of £29,243.
As you have already repaid £1,811.64 the balance now recommended
for repayment is £27,431.36. To the limited extent indicated
I would allow your appeal."
163. Ms Kirkbride wrote to me on 11 February in response
to my letter of 26 January.[145]
She told me that she had never kept notes in her diary as to
who looked after her son whilst she was in Bromsgrove. She said
that she would have someone resident in the Bromsgrove property
to provide care for her son at the weekends and during House of
Commons recesses so that she was free to carry out her parliamentary
duties. This person had normally been her brother, but she had
no record of the nights he had spent there, nor records of when
another person fulfilled his child caring role. She told me her
brother's main residence was in another town, which she identified.
Her brother jointly owned this property and since 2000 had been
elected, by the residents, onto the board of management for the
flat complex in which it stood.
164. Ms Kirkbride said that she did not have records
of the number of nights spent each week by her brother in her
constituency home. As a normal rule, she would spend every weekend
in the Bromsgrove property while the House was sitting and would
spend parliamentary recesses there except for the time when she
and her husband were away on holiday. Ms Kirkbride said that her
brother was registered to vote in Bromsgrove. She noted that "any
member of the public is eligible to register to vote anywhere
in the country with the obvious restriction that they would need
a postal address in that area to receive their polling cards.
My brother registered to vote in Bromsgrove because he provided
considerable voluntary support for me as the Member of Parliament
(in the form of maintaining my website and other computer related
services) and therefore wished to enjoy voting for his sister
in parliamentary elections." She said that the complainant
was wrong to suggest that voter registration denoted someone's
main address (although she noted that it might do so). In the
case of her brother there were obvious reasons why he might wish
to register in a place that was not his main home, but where he
did spend some of his time.
165. On the issue of registration at Companies House,
Ms Kirkbride said that her brother had returned to the UK after
living many years in the USA shortly before her son was born.
He had started working as a lecturer for a computer company which
offered residential courses across the country. Mr Kirkbride had
offered to cover childcare for her at the weekends. In 2001 Mr
Kirkbride's accountant had suggested that he should set up a company
in the UK and, without consulting her, Mr Kirkbride had put the
Bromsgrove property as the address of this company "so
that he would see any urgent paperwork at the weekend."
She accepted this should not have happened, but the reason was
"entirely innocent". No money whatsoever had
been traded through the company, it had never been used, it had
never had any employees and never had a liability for tax. It
had remained completely dormant and had been closed in 2005.
166. Ms Kirkbride said that her brother would have
spent occasional time, including nights, in the Bromsgrove property
without the presence of herself or her son. This was because Mr
Kirkbride had offered computer services to her and her staff in
Bromsgrove on a voluntary basis. He had maintained her website
and had offered training and support to her office staff on an
ad hoc basis. Ms Kirkbride said that there would have been
occasions when it was convenient for him to use the Bromsgrove
property as a base, as she maintained an office in her home there.
She continued, "It seems to me that in providing computer
support services as a volunteer my brother was saving the taxpayer
a considerable amount of money." However, Ms Kirkbride
said, her brother had other responsibilities to take care of during
the week and this would be an occasional occurrence. Ms Kirkbride
said that she and her husband had spent the parliamentary recesses
in the Bromsgrove property, and due to the "unpredictable
nature of our jobs" they liked to have someone to cover
childcare whilst they were there. Ms Kirkbride said that she had
claimed the full mortgage interest from the ACA.
167. Ms Kirkbride said she hoped that her answers
would satisfactorily resolve the complaint. She said she recognised
that I had conducted previous inquiries where a non- dependent
person stayed at the second home of an MP. "However, I
would hope that you will accept that my case involves a completely
different principle, insofar as the person was staying at the
property entirely for the purposes of enabling me to carry out
my parliamentary duties. Moreover, to raise an official inquiry
on the issue of childcare arrangements would have profound and
unfortunate implications for the next generation of women MPs
who we all hope will be entering parliament at the next election."
168. Ms Kirkbride also said that she recognised that
I had been given a job to do by Parliament, but noted the verdict
of Sir Thomas Legg's Inquiry and the appeal conducted by Sir Paul
Kennedy into her expenses.[146]
She said she hoped I would accept that she had spent the previous
nine months being investigated on precisely this issue—which
finally concluded in her favour—"and that to face
yet another inquiry would result in my being exposed to triple
jeopardy. I was delighted when Sir Paul accepted my explanation
and I hope that for my own peace of mind I can now look forward
to your doing the same."
169. I wrote to Ms Kirkbride on 17 February.[147]
I said that the issues I was to resolve included whether her brother
had lived rent free in her Bromsgrove home as in effect his main
residence, and whether the claims she had made for mortgage interest
for the additional mortgage she had raised on her constituency
home to build a third bedroom used by her brother were necessary
for the purpose of enabling her to perform her parliamentary duties.
These had been specific allegations raised by the complainant
and, as explained in previous correspondence I considered that
it would be right for me to resolve them. I said that in doing
so I would be happy to take account of any considerations which
she believed to be relevant in the auditing and appeal processes
undertaken by Sir Thomas Legg and Sir Paul Kennedy.
170. I noted that Ms Kirkbride did not have information
about the length of time her brother spent in her constituency
property or about how often someone else performed that role,
and that he spent occasional time, including nights, in that property
when she was not there. I told Ms Kirkbride that I thought it
would be helpful for me now to seek evidence from her brother
and that I was accordingly writing to him. In the meantime, I
asked Ms Kirkbride to clarify some points for me.
171. First, I noted that Ms Kirkbride had told me
that her brother had covered childcare in her Bromsgrove home
on Friday and Saturday. I asked her who had covered childcare
on the other nights of the week during the recesses. I also asked
whether she had paid her brother or any of her other child carers
for their childcare work. I said that if so, I was unclear why
she had no record of the childcare work undertaken for her. I
noted that Ms Kirkbride had been reported by the BBC on 24 May
2009[148] as saying
that she did not pay her brother, but I said I was not clear whether
other child carers were paid.
172. I asked Ms Kirkbride what childcare arrangements
she had had in place when her son was in London, where, as I understood
it, he went to school. I noted from the BBC report of 24 May
2009 that she had been quoted as saying that her brother stayed
in her London home from time to time to help look after her son.
As far as I could see, I said that she had not so far referred
to his staying in London in her evidence to me. I also asked Ms
Kirkbride to let me know the normal pattern of her overnight stays
in her London home, during term time and in the school holidays
and parliamentary recesses. Finally, I asked Ms Kirkbride whether
her brother had made any payments, in money or in kind, for the
time he spent in her constituency property.
173. I wrote to Ms Kirkbride's brother, Mr Ian Kirkbride,
on 17 February.[149]
I asked Mr Kirkbride whether he could confirm the evidence which
Ms Kirkbride had given me about his use of her homes, and which
I summarised in my letter.[150]
I asked Mr Kirkbride for an estimate of the number of nights he
normally spent in the constituency property, and of the normal
pattern of his overnight stays in the Bromsgrove property over
the course of each financial year from 2004-05 to 2008-09. I asked
for his estimate of how many nights he had spent in the property
over the course of each financial year in the same period at times
when Ms Kirkbride and her son were not there. I also asked him
why he had spent those nights there.
174. I asked Mr Kirkbride to explain why he had identified
Ms Kirkbride's constituency property as his usual residential
address in completing the forms for Companies House, if that had
not been his usual address. I also asked whether Mr Kirkbride
had spent any nights in Ms Kirkbride's London home and whether
he had done so to look after her son. I asked him, if so, for
an estimate of the normal pattern of his overnight stays in the
London property over the course of each financial year from 2004-05
to 2008-09. I sought Mr Kirkbride's view on whether he regarded
his identified property in another location as his main home and
whether there was any basis for the allegation that his main home
had at any time from 2004 to 2009 inclusive been Ms Kirkbride's
constituency property in Bromsgrove. I also asked Mr Kirkbride
for a description of how the arrangement for planning his overnight
stays at the constituency property had worked out in practice.
Had he made a standing arrangement to be there on the same nights
a week and if so, did this vary between sitting weeks and parliamentary
recesses; or had he arranged with Ms Kirkbride ad hoc each
week the nights when he would need to be in the constituency property
to look after her son?
175. Mr Kirkbride replied to me on 11 March.[151]
He said he generally concurred with the statements his sister
had made and which I had outlined in my letter of 17 February.
He said he had never found it necessary to maintain a formal diary
and was therefore unable to give a figure for the number of nights
he had been at the Bromsgrove property, either when his sister
or her son were there, or on the occasions he might have been
there alone. "Few of us are capable of remembering in
detail events which have been a routine part of life going back
over five years or more. As such any estimate would be a complete
guess with all the inaccuracies that would involve." What
he said he could relate was "the normal pattern of my
movements over that period."
176. Mr Kirkbride said he would plan to be at the
Bromsgrove property most weekends (typically Friday to Sunday)
when his sister and her son were expected to be there. This had
been a standing arrangement. He said that when his sister and
her son were planning to be there during parliamentary recesses
they would make arrangements, in so far as possible with any other
obligations he may have had during the week, for him to be there
to cover childcare for his nephew. Mr Kirkbride said he was also
usually flexible enough to be able to be in London as needed to
look after his nephew if for example Mr Mackay and Ms Kirkbride
were going to be away and they wanted someone older to support
their au pair. He said he would frequently drive his nephew
up to the constituency home after school on Friday so that his
sister could go early and spend more time on her parliamentary
duties there. Mr Kirkbride said that he was self-employed and
therefore had an irregular work pattern taking him to London and
all over the country. However, he said he was very close to his
family and cared not only for his nephew but also his elderly
mother who lived in a property of which he [Mr Kirkbride]
was a joint owner. He said that when his nephew and he were in
the constituency property his main purpose was to look after him
and "free up my sister for her constituency duties."
177. On the occasions when he had been alone in the
Bromsgrove property he had been there "at the express
wish of my sister" to help her in the performance of
her parliamentary and constituency obligations. He had offered
to help her with any IT needs on a wholly voluntary basis since
his work was in IT, networking, lecturing and training. He had
maintained his sister's website and she would often leave photographs
with him as she departed for London at the end of the weekend
so that he could update it. Mr Kirkbride said that he had also
offered technical support to his sister's staff and if he was
doing this on Monday morning for example, it might make sense
to stay the night before. He said he would help his sister's secretaries
with any IT problems, computer glitches, networking issues and
the like, and had made himself available on the end of a phone
for them. Mr Kirkbride said he would teach or help them with the
electoral roll database maintained by Ms Kirkbride's office, and
with various software programs as needed. "For my own
efficiency I would try as far as possible to do any and all of
this around the weekend when I needed to be in Bromsgrove to look
after my nephew."
178. Mr Kirkbride said that the question of the identification
of the Bromsgrove property as his "usual residential address"
for Companies House purposes went back to the year 2001. He noted
that he was self employed. Mr Kirkbride said that his accountant
had been encouraging him to form a company. Mr Kirkbride had not
been convinced but had reluctantly told his accountant to go ahead.
His accountant had done all the paperwork and had not consulted
him. At the time, Mr Kirkbride had given his accountant the Bromsgrove
postal address for any time-sensitive contact as he had been elsewhere
working during the week but knew that he was likely to be in Bromsgrove
most weekends. Mr Kirkbride said he had only been told in the
last year that the form asked for the usual residential address,
and he continued, "Had I been aware of that I would have
been able to give a different address."
179. The company had been registered in February
2001. It had never been used. Mr Kirkbride said he had seen no
reason to change his self employed status. The company had remained
a dormant company with his accountant filing the annual paperwork.
"I don't believe I saw any paperwork again until my accountant
missed a filing deadline for dormant companies (he'd forgotten
about it too!) and there was a penalty. I immediately closed the
company. I applied to close in November 2004 and it was finalised
in April 2005." Mr Kirkbride said he had done no business
in the Bromsgrove area and he had not worked out of the constituency
property at any time. He said, "Setting up the company
was a mistake. Having it held against me would compound that."
180. Mr Kirkbride said that there had been no regular
pattern of stay in London. His sister had had a series of au
pairs and an agreed work pattern. There had been times when
his sister and her husband would be away from home, or there was
some school event when they had felt it would be appropriate for
the au pair to have some adult backup. There had been times
when the au pair went home for extended holiday periods
and times when the au pair had fallen ill or had personal
commitments. "Where I could fit it into my other commitments,
I agreed to help. Au pairs tended to leave in early July
and arrive in late September and there was often a need for childcare
for parts of that period too."
181. As to whether he regarded his property in another
location as his main home and whether there was any basis for
the allegation that between 2004 and 2009 his main home had been
the Bromsgrove property, Mr Kirkbride said he had never been in
the position of having to identify a main home. He said he was
a part-owner of the property where his mother lived, where he
had his own bedroom, kept his clothes, stored his personal things
and received post. He had served on the management committee of
the building for some ten years, being chairman for about six.
He said that he would consider this his main home, although his
schedule meant he spent a limited amount of his time there. As
a single person with no family of his own "my work and
lifestyle for some thirty plus years has been one of planes, cars
and hotels." He had always been a very visible "Uncle
Ian" in Bromsgrove. Where possible they had taken his
nephew to many constituency events where he kept an eye on him
while his sister socialised. "Many people have assumed
I was her husband. It does not surprise me that people also assumed
I lived there."
182. As to how the arrangement worked in practice,
Mr Kirkbride said that shortly after his nephew was born and while
he was helping out it had become clear to him that his sister
would have difficulty when she was alone in the constituency with
her child. "Although I was busy much of the working week
I was generally free at weekends and I offered to give her a guarantee
of a babysitter in the constituency at the weekend ... It was
therefore a standing arrangement. As time went by babysitter
became child minder." He said he had seen the difficulty
of "juggling nannies, of changes of schedule, of nannies
cancelling, of events running over time, of getting nanny taxis
and the headache that added to organising a weekend in the constituency."
He said that "an ad hoc arrangement for childcare"
was exactly what an MP did not want as it meant a constant
distraction each week as to the arrangements for the weekend.
He had taken that burden off his sister. Mr Kirkbride said that
his flexibility, being single, and their sibling relationship,
had removed most of those obstacles and it had seemed to be an
ideal and eminently sensible arrangement. He said that the arrangement
had worked well and there was a mutual desire for it to continue
in parliamentary recesses, but then it had to work around his
schedule. "However the pace of work was more relaxed in
a recess and if I could not help then it was often possible for
my sister to take her son with her or easier to find someone else
to cover since it tended to be during daylight hours only."
183. Mr Kirkbride said that his sister, being married
to another MP with constituency obligations of his own, had been
effectively a single-mother MP. "She could not have the
customary support of her husband when she was undertaking her
parliamentary duties." Mr Kirkbride said that a single
MP with a child needed a lot of quality support and backup if
she were to do a good job in her constituency. "I was
that guaranteed reliable backup. The communication and understanding
between siblings beats that of any childminder. She could be sure
her son had the best of care." He had lost count of the
number of times someone said to him "I don't know what
Julie would do without you". Everyone had said she was
an excellent constituency MP and, he said, "I like to
think I played some part in that."
184. I wrote to Mr Kirkbride on 15 March, seeking
some more information about his overnight stays in the constituency
when he was not there for childcare purposes but was preparing
to support Ms Kirkbride and her staff on IT matters, including
the maintenance of her website.[152]
I asked Mr Kirkbride how often in a month, or a year, he would
spend the day or the overnight in the property for this additional
purpose. On 26 March, Mr Kirkbride wrote to me to say that he
would characterise his time in the Bromsgrove property as "occasional".[153]
185. Meanwhile, Ms Kirkbride had written to me on
4 March,[154] in response
to my letter of 17 February.[155]
She said that the complainant's claim that her brother lived in
her constituency property was "based on two pieces of
'evidence' he supplied which I addressed in my previous
correspondence and to which the answers, I believe, demolish the
vexatious accusation that is being made."
186. Ms Kirkbride said that the issue of the additional
mortgage she had claimed to build a third bedroom to be used by
a child carer which might—or might not—be her brother
at any one time was "precisely the issue addressed by
Sir Thomas Legg and Sir Paul Kennedy." She said she
hoped I would note the conclusion reached by Sir Paul Kennedy
which was as follows:
"I accept that by 2008 there were restrictions
on transactions with family members. ACA could not be used to
meet the costs of a mortgage or for leasing accommodation from
a partner or family member, but I see no reason why that should
have been extended to prevent you from recovering the costs of
an additional mortgage required to enable you to provide a child
carer's bedroom just because at that time it was envisaged that
the child carer would normally be your brother. Accordingly, I
am satisfied that there are special reasons in your individual
case..."[156]
187. Ms Kirkbride said that she felt strongly that
she was being subjected to triple jeopardy and she hoped that
in the light of this adjudication by Sir Paul I would feel that
this particular issue of the extension of her mortgage had been
decided.
188. Ms Kirkbride said that "... few busy
working mothers keep a detailed note about who is looking after
their child at any one time—life just isn't like that. I
also hope that you noted that if there were any occasions when
my brother did stay in my constituency property in my absence
it was in order that he could use the office equipment located
there to maintain my website (an activity he did for free and
which is charged to the taxpayer by most MPs) or because he was
helping my Bromsgrove staff with ICT support."
189. On the question of the provision of childcare
on other nights of the week during the recesses, Ms Kirkbride
reiterated that she would have someone resident in the Bromsgrove
property to provide care for her son at the weekends and during
House of Commons recesses so that she was free to carry out her
parliamentary duties. On the issue of payment, Ms Kirkbride said
that she had never paid her brother in cash or in kind, for the
care of her son. "He looks after my son because he loves
us both and he has the time to do it. When my brother cannot help
me in Bromsgrove I ask my mother-in-law or friends I have made
in the Bromsgrove Conservative Association to step in. I normally
repay their kindness with a box of chocolates or a bunch of flowers."
In London she paid their au pair a cash sum each week.
190. Ms Kirkbride said that the main carer for their
child in London was an au pair who "similarly offers
a flexible arrangement given the unpredictability of our working
life." However, her brother also came to London to help.
Ms Kirkbride said that if she and her husband were going abroad
they felt it inappropriate to leave an inexperienced au pair
in charge of their son for a prolonged period. Equally, it was
unfair to ask their au pair to work seven days a week without
a break. "It might also be the case that our au pair
would wish to return home (before Christmas or in the summer)
before the start of the parliamentary recess and so I might ask
my brother if he would cover childcare in London during these
periods when he was in a position to do so given his other commitments."
191. Ms Kirkbride said that the normal pattern of
her overnight stays was for her to be in London during the week
when the House was sitting, travelling to Bromsgrove on Friday
night and returning to London on Sunday to ensure her son could
be at school on Monday morning. Where parliamentary recesses and
school holidays were coterminous she and her husband would be
in Bromsgrove when not on holiday.
192. Ms Kirkbride said, "I find the question
that my brother should pay me—either in cash or kind—for
the time he spent at my constituency property to enable me to
perform my parliamentary duties bizarre. Just for the record,
can I make clear that he certainly did not pay me in cash or kind
for anything, but I do not see how anyone would think that it
might be appropriate for him to do so in the circumstances."
193. In conclusion, Ms Kirkbride said that as a female
MP, married to another Member, who had had a child whilst a Member
of Parliament, she had found herself "... in a somewhat
unique position. I had an inexhaustible and unpredictable demand
for childcare and a duty to my child to act in his best interests
as his mother. I therefore felt fortunate that my brother was
able to help me to look after my son which obviated the inevitable
guilt I would otherwise have felt about the amount of time I was
able to spend with him. Indeed, had it not been for my brother's
help I would have felt that it was not in my child's best interests
for me to carry on as the MP for Bromsgrove."
194. Having considered the evidence up to this point
I wrote on 15 March to the Director of Operations at the Department
of Resources, attaching copies of relevant correspondence and
seeking his advice on the complaint.[157]
I asked him for his comments, taking account, as necessary, of
the findings of Sir Thomas Legg's audit and the appeal made to
Sir Paul Kennedy.[158]
In particular, I asked him whether the Department considered that
the use of the accommodation by Ms Kirkbride's brother to provide
childcare support (and some IT support) had been within the Green
Book rules, taking account of the rule that claims might not be
made for the living costs of anyone other than the Member. I asked
him how the Department would normally expect to apply this provision
in the case of people supporting a Member with childcare. I also
asked the Director whether, in the circumstances described by
Ms Kirkbride and her brother, it was within the rules of the
House for Ms Kirkbride to claim for the interest on a mortgage
increased to enable her to build a third bedroom in the constituency
property, taking account of the relevant Green Book rules at the
time.
195. I also asked the Director to provide some factual
information about Ms Kirkbride's claims, including her ACA claims
from 2004-05 to 2008-09 inclusive by category, and if he could
identify when Ms Kirkbride began to claim for the interest on
the additional mortgage for the work on the additional bedroom.
Finally, I asked for details of any discussions which the Department
had had with Ms Kirkbride, or someone on her behalf, about her
childcare arrangements or her plans for extending her constituency
property.
196. The Director of Strategic Projects wrote to
me on behalf of the Department of Resources on 25 March.[159]
He said that the Department had not been aware that Mr Kirkbride
had stayed at the constituency home. In the Green Books which
were in force from 2005 to 2009, Members had been "strongly
advised" against subletting or renting out any part of
a property on which ACA was claimed (this rule had applied also
to paying guests). The Director said that if they did so, they
were required to notify the Department, who would reduce their
claims by the amount of their rental income. They were not permitted
to claim for the mortgage costs of any part of the property occupied
by a lodger or paying guest unless this was offset against their
claim. However, where no rent was paid, there was no rule which
governed who might or might not live in, or stay at, a home on
which ACA was claimed.
197. At the time, the Department "would not
therefore have been concerned if someone other than the Member
used an ACA-funded property for occasional stays. If the Department
had become aware of a more regular arrangement, it might have
sought more information from the Member. But it would have been
unlikely to have been concerned if the person staying in the property
from time to time was not paying rent but was providing a function
that enabled the Member to carry out his or her duties more effectively."
198. The Director said that, from the precedents
of recent cases considered by the Committee on Standards and
Privileges, it was clear that the test which should be applied
to cases when another person occupied a second home was whether
the expenditure for which claims were made was wholly and exclusively
incurred in connection with the Member's parliamentary duties.
Where another person's living costs were subsidised by ACA/PAAE
payments made to a Member, or that person received a benefit,
it was also clear that this was outside the rules. In the case
considered in the Committee's Eighth Report of the (then) current
session, the Committee had concluded that, even though it had
been the Member who had received a personal benefit (in that case,
emotional support) from a family member staying in their second
home, the Member should nevertheless have repaid a proportion
of the amounts she had received (although in that case, the family
member's use of the second home had been "substantial,
regular and sustained").[160]
199. The Director said "There seem to me
to be special elements in the current case." First, Mr
Kirkbride's living costs did not seem to the Director to have
been reduced to any substantial degree by his occupation of Ms
Kirkbride's second home. Mr Kirkbride had told me that his lifestyle
was peripatetic, but that he was part-owner of another property
which he regarded as his main home. There would have been some
savings to Mr Kirkbride at the margin because of the utilities
and so on that he used at Ms Kirkbride's property, and it would
have been possible to argue that she should have abated her claims
in respect of the times he was present. "But if one pursued
this argument to its logical conclusion, every Member ought to
have abated his or her ACA/PAAE claims for every guest who stayed
at his or her second home—or indeed for every visitor. I
would therefore view the element of Ms Kirkbride's claims which
met the costs of accommodating Mr Kirkbride as being only at the
margin claims in respect of his living costs."
200. The Director said that it was also clear that
it had been Ms Kirkbride who had received the benefit from Mr
Kirkbride's presence in her second home, and that this was a benefit
which had enabled her to discharge her parliamentary role: his
presence had enabled her to perform her constituency duties. The
Director's view was that Mr Kirkbride had thus performed a service
rather than obtaining a benefit. That he stayed overnight was
directly related to the service he had performed. The Director
said that he would be surprised if other Members had not regularly
asked babysitters to stay overnight in their second homes or had
had nannies who had done so. Others might have employed residential
staff such as housekeepers. "Mr Kirkbride's kinship with
Ms Kirkbride can be disregarded for these purposes, except that
it meant that the consideration which Mr Kirkbride received for
his services was not a material one and, as both she and he have
said, there would have been no perceived need for any formal record
of the arrangements they came to as brother and sister."
201. The Director said that the complainant was correct
in asserting that the provision of childcare was not claimable
against parliamentary allowances. However, he said it was relevant
to mention in this context that the recent Speaker's Conference
on Representation had concluded that more needed to be done to
attract parents with young children to the House. In particular,
the Conference had concluded that "Decisions on childcare
are a matter of personal choice and for many MPs their arrangements
will be essential to their ability to carry out their parliamentary
duties. Parents will choose to have their children looked after
in their homes (in the constituency and/or in London) by other
family members, by nannies or registered childminders, or in a
nursery or creche. All of these choices are equally valid and
should be equally respected by the parliamentary authorities."
[161]
202. The Director noted that Mr Kirkbride had also
stayed occasionally at Ms Kirkbride's additional home [the home
in her constituency] in order to help her with her parliamentary
ICT needs. He said that there had perhaps been one difference
between these stays and the stays for childcare purposes: in the
case of childcare, overnight stays had been intrinsic to the help
offered, whereas overnight stays in order to help with constituency
ICT had been incidental. "However, if Mr Kirkbride had
charged his sister for his ICT services (no such charges were
made), he could have claimed for accommodation as part of those
charges and Ms Kirkbride could have claimed these charges against
her IEP [Incidental Expenses Provision]. In that sense,
providing overnight accommodation could be regarded as having
saved public funds."
203. On the question of the ACA claims made by Ms
Kirkbride in respect of her extended mortgage, the Director noted
that the 2006 version of the Green Book stated that "re-mortgaging
is permissible if moving to different accommodation or if repairing
or improving your existing ACA home. Members should consult the
DFA before making any major commitments." (para 3.7.3).
The Director attached to his letter a copy of a letter written
by Ms Kirkbride to the Department on 16 June 2008.[162]
This said that, following advice from an official in the Fees
Office, she was attaching a new mortgage interest statement for
her ACA. Ms Kirkbride said in the letter that the extended mortgage
had been taken out to pay for the building of an extra bedroom
at the Bromsgrove property, "accommodating the needs of
our growing family" and that she would be making claims
accordingly. The Director said that there would have been no reason
not to permit claims in respect of an extended mortgage to allow
for extra accommodation for the needs of a Member's dependent
child. There was no correspondence from the Department to Ms Kirkbride
to confirm the arrangement, although Ms Kirkbride referred to
the advice given to her in her letter to the Department of 16
June 2008.[163] The
Director said that it appeared likely that the agreement had been
made orally, and the absence of any comment on Ms Kirkbride's
letter implied that the Department had agreed with her.
204. The Director noted that Sir Thomas Legg had
regarded the additional mortgage as conflicted because the payments
"were used to provide accommodation for a non-dependent
family member".[164]
However, Sir Paul Kennedy had regarded claims in respect of the
extension of the mortgage as permissible because it had been an
extension to permit an improvement to the property which was allowed
under the rules, and because it was not relevant that the carer
for whom the extra room had been provided would normally be the
brother of Ms Kirkbride.[165]
205. The Director told me that no claims had been
made in respect of the property from any allowance other than
ACA/PAAE. Furthermore, no claims had been made for services provided
by Mr Kirkbride, either in respect of childminding or for ICT
support. Some ICT equipment, software and peripherals had been
bought by Mr Kirkbride and delivered to him at Ms Kirkbride's
second home. Ms Kirkbride had subsequently claimed back the relevant
costs from her IEP. This took place sporadically between 2004-05
and 2008-09. The Director said that the Department had no details
on file of any discussions which the Department had with Ms Kirkbride,
or someone on her behalf, about her childcare arrangements or
plans for extending her constituency property. A summary detailing
Ms Kirkbride's ACA/PAAE claims from 2004-05 to 2008-09 was attached.[166]
206. I wrote to Ms Kirkbride on 29 March, attaching
my correspondence with the Department and asking for her comments[167]
I noted also that Mr Kirkbride had told me that he would characterise
his time in Ms Kirkbride's constituency property as "occasional".
207. I said that I needed now to consider how best
to proceed. While I had considered this complaint separately from
that of the complaint against her husband, I said I thought I
had reached the point where I had to recognise that there was
a relationship between Ms Kirkbride's arrangements and Mr Mackay's.
This had been recognised in the findings of Sir Paul Kennedy on
their appeals.[168]
I said that in particular, if I were to find that Ms Kirkbride's
constituency home had also been her husband's main home, then
I would need to address the question of whether it was within
the rules, including the spirit of the rules, that parliamentary
resources should have been used, in effect, for an extension to
his main home.
208. I told Ms Kirkbride that I regretted, therefore,
that, subject to any points she might wish to put to me, I would
need to resolve these complaints in tandem and at the same time.
I said I had not reached the point of resolution in respect of
the complaint against Mr Mackay, but that I would let Ms Kirkbride
know as soon as that point was reached.
209. I wrote to Ms Kirkbride again on 18 May, the
day on which the new Parliament assembled, to resume my inquiry.[169]
I told her that I had reviewed the evidence which I had collected
in relation to this complaint. I noted that in the complainant's
initial letter of 30 October he had referred to evidence in an
unidentified newspaper article which suggested that there was
a witness who believed that her brother was a permanent resident
at her Bromsgrove property.[170]
The complainant could not identify the press report. I told Ms
Kirkbride that I had subsequently identified it as being an article
from the News of the World of 24 May 2009, which I attached.[171]
This article referred to comments reported to have been made by
a gardener at the Bromsgrove property.
210. I said that I recognised that this evidence
was directly contrary to the evidence which she and her brother
had provided. I told Ms Kirkbride that, having identified the
article referred to by the complainant, I needed to check, if
at all possible, with the reported evidence of the gardener. I
therefore asked Ms Kirkbride if she could provide me with the
name and address of that potential witness so that I could write
to him about it.
211. Ms Kirkbride wrote to me on 26 May.[172]
She said that she was particularly pleased by the response from
the Fees Office[173]
to the allegations made against her. "It seemed to me
that the thoughtful and sympathetic reply from [the Director
of Strategic Projects] entirely vindicates my position and
even draws attention to the fact that my brother's help for me
as a Member of Parliament actually saved the taxpayer money!"
212. Turning to my questions about the claims made
about her brother by an unnamed "gardener" in
the News of the World, Ms Kirkbride said that her Bromsgrove
property was described as a "country estate"
in the article, with the connotation that there was a team of
gardeners managing extensive grounds, when in fact it was a large
old house, divided into flats, surrounded by a not very large
garden. "Moreover, the fact that the 'gardener'
is unnamed would suggest to me that the quote is made up. I am
sure that in the course of your other inquiries you will have
come across situations in which reports in newspaper articles
have been found to be not entirely accurate, or even true."
The position with regard to gardening at the Bromsgrove property
was that the bulk of it was done by the residents in order to
keep the service charge as low as possible. Ms Kirkbride said
that a contract existed for the cutting of the grass at the Bromsgrove
property when necessary, "but even I, as a resident, am
not aware of a recognisable 'gardener' figure."
213. I replied to Ms Kirkbride on 3 June.[174]
I said that I would take it that she had no comments to make on
her brother's further letter to me of 26 March, and that she
was unable to identify anyone corresponding to the "gardener"
described by the News of the World who might offer me further
evidence on her brother's stays in the Bromsgrove property.
Findings of Fact: Ms Julie Kirkbride
214. Ms Kirkbride was elected as Member for Bromsgrove
in May 1997. From 1997 Ms Kirkbride and her husband Mr Mackay
jointly owned properties in London and in her constituency, Bromsgrove.
From 2004 to 2010 Ms Kirkbride nominated the constituency property
in Bromsgrove as her second home and their London property as
her main home. She and Mr Mackay had taken out an interest-only
mortgage of £180,000 on the Bromsgrove home in 2004, and
further extended the mortgage by £50,000 in April 2008 to
cover the cost of an extra bedroom. The cost of that work was
in excess of £ 60,000.
215. Ms Kirkbride wrote to the Department of Resources
on 16 June 2008, to tell them that, following advice from an official
in the Department, she was attaching a new mortgage interest statement
for her ACA, reflecting the extended mortgage she had taken out
to pay for the building of an extra bedroom at the Bromsgrove
property, "accommodating the needs of our growing family"
and that she would be making claims accordingly. There was no
correspondence from the Department to Ms Kirkbride to confirm
the arrangement. The breakdown of Ms Kirkbride's mortgage interest
claims against the ACA provided by the Department of Resources
indicates that she claimed and was paid £53,700 over the
five-year period covered by the complaint, from 2004-05 to 2008-09.
In his Review of past ACA payments, Sir Thomas Legg found that
the total interest paid under the ACA over the same period to
fund the extended mortgage was £2,584.
216. Ms Kirkbride's brother, Mr Ian Kirkbride, stayed
from time to time in the Bromsgrove property, where he provided
childcare for the young son of Ms Kirkbride and Mr Mackay. Mr
Kirkbride would also stay overnight at the Bromsgrove property
by himself in order to assist Ms Kirkbride and her constituency
staff with their IT. The evidence of Ms Kirkbride and her brother
was that his overnight stays by himself for this purpose were
occasional.
217. Mr Kirkbride was registered to vote in the Bromsgrove
constituency. Ms Kirkbride's evidence is that this did not show
that Bromsgrove was necessarily her brother's main home: he registered
there because he wanted to support her in any election. In February
2001 the Bromsgrove property was given as Mr Kirkbride's usual
residential address in the registration form of a company registered
for him at Companies House. Mr Kirkbride's evidence is that the
registration was undertaken by his accountant; he was not aware
of the "usual residential address" requirement
and provided the Bromsgrove address because he was there at weekends;
the company never traded and it was wound up in April 2005.
218. The evidence of Ms Kirkbride and her brother
is that, when Parliament was sitting, he normally stayed overnight
to look after her son in the constituency property at the weekends.
Mr Kirkbride's evidence is that during parliamentary recesses,
he stayed overnight at the Bromsgrove property at other times
to look after the son when Mr Mackay and Ms Kirkbride were also
present. Mr Kirkbride says that this was dependent on his other
obligations. The evidence of Mr Kirkbride is that from time to
time he stayed when needed overnight in the London property to
care for his nephew, for instance to support the au pair
when Mr Mackay and Ms Kirkbride were away. Mr Kirkbride's evidence
is that he regarded as his main home the home he jointly owned
and shared with his mother in another town, although he spent
a limited amount of time there.
219. Sir Thomas Legg's Review concluded 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".
However, in considering appeals against Sir Thomas's findings,
Sir Paul Kennedy concluded that Ms Kirkbride's claims in respect
of the extension of the mortgage did not represent a problem,
because it was an extension to permit an improvement to the property
of an extra bedroom to accommodate her child's carer, and Sir
Paul notes Ms Kirkbride's evidence that, before the work was undertaken,
she explained to a senior Accounting Officer in the Fees Office
what she proposed to do, and why. He also notes Ms Kirkbride's
evidence that the senior official authorised the extension of
the mortgage. 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. He allowed Ms Kirkbride's appeal on this point.
220. The Department of Resources considers that it
would have been unlikely to have been concerned about a Member's
arrangements if a person staying from time to time in the second
home was providing a function that enabled the Member to carry
out their duties more effectively. There would have been no reason
to refuse claims in respect of an extended mortgage to allow for
extra accommodation for the needs of a Member's dependent child.
The Department's view is that Mr Kirkbride's living costs did
not seem to have been reduced to any substantial degree by his
occupation of Ms Kirkbride's second home, and that he therefore
did not receive a benefit from the arrangement. The Department
says that it was Ms Kirkbride who received the benefit from Mr
Kirkbride's presence in her second home, and that this was a benefit
which enabled her to discharge her parliamentary role: his presence
enabled her to perform her constituency duties. Mr Kirkbride's
overnight stays for childcare were directly related to the service
he performed. The Department's view of Mr Kirkbride's overnight
stays when he assisted Ms Kirkbride and her staff with their IT
is that such stays were incidental to that assistance. However,
the Department believes that if Mr Kirkbride had charged his sister
for his ICT services (no such charges were made), he could have
claimed for accommodation as part of those charges and Ms Kirkbride
could have claimed these charges against her Incidental Expenses
Provision. In the Department's view, providing overnight accommodation
could, in that sense, be regarded as having saved public funds.
221. Ms Kirkbride considers that it was reasonable
for her brother to stay overnight in her constituency property
to look after her son, and occasionally to stay there by himself
in order to help with constituency IT matters. She believes that
she did not need to reduce her ACA claims to reflect her brother's
living costs, because her brother was there only to assist her
with her parliamentary duties. Ms Kirkbride considers that she
acted within the rules in making these arrangements, which enabled
her to reconcile the demands on her time as an MP with her responsibilities
as a mother.
222. Ms Kirkbride believes that in my inquiry she
was subjected to triple jeopardy; she feels that the particular
issue of the extension of her mortgage had already been decided
by Sir Paul Kennedy.
Standard of Proof
223. With one exception, the standard I have adopted
in considering the evidence in relation to these inquiries is
the normal civil standard of proof, the balance of probabilities.
The exception has been because it has been necessary to form a
judgement based on the conflicting recollections of Mr Mackay
and the former Head of the Fees Office about the advice which
the former Head of the Fees Office may have given Mr Mackay when
they met in September 1997. Given the importance attached to this
communication in assessing Mr Mackay's conduct, and the seriousness
of the complaint against him, I have come to my conclusion on
that matter against the standard that the evidence against Mr
Mackay would need to be significantly more likely to be true than
not true.
Conclusions
INTRODUCTION
224. The first issue I am to resolve is 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. The effect of these decisions
was that parliamentary allowances funded both of their homes.
225. The second issue I am to resolve is 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.
226. The complaints into which I inquired did not
extend to Ms Kirkbride's designation of the London property as
her main home and the Bromsgrove property in her constituency
as her second home. But, while I have considered the complaint
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 I 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.
227. Mr Mackay and Ms Kirkbride argued from the outset
of this inquiry that I should not pursue the complaint, since
to do so would put them in double jeopardy. This was because their
arrangements had been audited by Sir Thomas Legg. Subsequently
they argued triple jeopardy, since their appeals against Sir Thomas
Legg's findings had been considered by Sir Paul Kennedy.
228. I recognise that I have considered issues which
were also considered by Sir Thomas Legg and, on appeal, Sir Paul
Kennedy. But these complaints contained serious allegations against
both Members raised with me by a member of the public. Given the
seriousness of the matters, I considered it right that I should
myself inquire into them following the complaint I had received.
It is, in my judgement, right also that, in a matter of this seriousness
which has, under the rules of the House, generated a complaint
supported by the necessary evidence, the House of Commons should
have an opportunity to decide on whether the Members—or
former Members—breached the rules of the House and, if so,
whether they should face parliamentary sanction for their conduct.
The audit process undertaken by Sir Thomas Legg enabled Members
to pay back the sums of money that they were found to have over-claimed
for the years covered by the audit (2004-05 to 2008-09), as both
Mr Mackay and Ms Kirkbride have paid back some sums of money.
But that process did not enable the House to form a view on whether
the rules of the House had been breached, whether that breach
extended beyond the audited years, and, if so, what action to
take in respect of the Member or Members concerned. The complaints
process approved by the House enables that action to be taken.
This is particularly germane, since both Mr Mackay in respect
of his identification of his main home, and Ms Kirkbride in respect
of her extension, deny any breach of the rules of the House.
229. I come now, therefore, to my conclusions on
the complaint against Mr Mackay.
RT HON ANDREW MACKAY
230. The issues I have had to consider in respect
of this complaint are:
a) Was Mr Mackay within the rules in identifying
the Bromsgrove property he shared with his wife as his main home?
b) Was Mr Mackay's decision to make claims for his
London home above reproach?
Was Mr Mackay within the rules in identifying
the Bromsgrove property he shared with his wife as his main home?
231. Mr Mackay's evidence is that he designated as
his main home the Bromsgrove property in his wife's constituency
in or around the autumn of 1997, following a discussion with the
then Head of the Fees Office. In Mr Mackay's recollection, the
Head of the Fees Office had told him that he could identify either
property as his main home and had advised him to select his Bromsgrove
property. He had also advised Mr Mackay that Ms Kirkbride should
select the London property as her main home. Mr Mackay's firm
recollection, which he has said he would repeat under oath, was
that the then Head of the Fees Office was fully in possession
of all the relevant facts in relation to his and Ms Kirkbride's
properties, and gave clear advice on the designation of their
main and second homes. The former Head of the Fees Office strongly
disputes this evidence. He has accepted that he does not now recall
the details of the discussion, but he is adamant that he would
not have given the advice which Mr Mackay recalls.
232. At this remove, it is not possible definitively
to resolve this conflict of evidence. But, in my judgement, the
standard of proof I have adopted in assessing this evidence (see
paragraph 223) has not been met. In this regard, it is fair to
say that the former Head of the Fees Office does not recall the
conversation and that his recollections of Mr Mackay's domestic
arrangements were not wholly accurate. Mr Mackay argues with some
persuasiveness that he would not have telephoned the former Head
of the Fees Office in May 2009, when the highly critical reports
of his arrangements had started to appear in the press, if he
had thought that he had been acting against the advice of that
official. I think it reasonable, therefore, to conclude 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.
I accept also that Mr Mackay did not seek at any stage to disguise
this arrangement.
233. I regret that Mr Mackay decided not to tell
me about his telephone conversation with the former Head of the
Fees Office in May 2009, even though I specifically asked him
about the dates of his contacts with that official in my letter
of 26 January.[175]
That conversation was relevant to my inquiry and had I not sought
evidence from that official, and if he had not offered that information,
it would not have come to light.
234. It is correct that, in 1997, the rules did not
seek to define a Member's main home—although, in my view,
the ordinary interpretation of the term should be assumed. Given
that Mr Mackay had two homes and was planning to spend a significant
amount of time in each, I accept that he had a choice in the designation
of his main home.
235. Equally, it should have been evident to Mr Mackay,
as it should have been evident to the Department, that Mr Mackay
would only have been able to make a claim on parliamentary allowances
if he had designated his Bromsgrove property as his main home.
Had he designated the London property as his main home, he (unlike
Ms Kirkbride) would not have been able to claim for the Bromsgrove
property because it was too far away from his constituency.
236. In the event, Mr Mackay decided to designate
the Bromsgrove property as his main home and to claim from the
Additional Costs Allowance for his property in London. That designation
was made towards the end of 1997 or early in 1998. It remained
in place until April 2009. I need to decide whether Mr Mackay
was objectively within the rules in making that designation.
237. The rules in relation to the identification
of a Member's main home became more specific in June 2003. From
then, until they changed again in April 2009, the rules noted
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.
238. In considering, therefore, whether Mr Mackay
was within the rules in identifying his Bromsgrove property as
his main home, I have taken account both of the rules as they
were before 2003 and the more specific provisions after that date.
I have recognised too that the more specific rules do allow for
exceptions by the use of the word "normally".
That does allow the Member's particular circumstances to be taken
into account.
239. I consider that Mr Mackay was wrong to designate
the Bromsgrove property as his main home for the purpose of his
claims from parliamentary allowances. I accept his estimate that
he spent slightly more nights in his Bromsgrove property than
he did in his London property, although his estimate was for one
year only and was not produced in any detail. The difference,
however, was not substantial. A difference in his pattern of overnight
stays between London and Bromsgrove of just nine nights a year
would have tipped the mathematical balance.
240. Mr Mackay should, therefore, have taken account
of other factors in reaching his decision. He was living with
his wife as a married couple and, from 2000, they were bringing
up their child. During the period, his son was to start at school
in London. His wife considered that the London home was her main
home. The former Head of the Fees Office provided no grounds to
substantiate his assertion that Ms Kirkbride's main home was in
her constituency. While Mr Mackay's evidence is that he spent
some additional nights in Bromsgrove on private business, the
family (Mr Mackay and Ms Kirkbride and their son) operated as
a unit. They lived together. They normally holidayed together.
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. It
is 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. It is equally difficult to give
much weight to Mr Mackay's childhood links to the Bromsgrove area.
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.
241. I conclude that, on a proper interpretation
of Mr Mackay's circumstances, he was in breach of the successive
rules of the House in identifying from 1997 to 2009 his Bromsgrove
property as his main home, thus enabling him to claim from parliamentary
allowances for his London home. I therefore uphold the complaint.
I note that Mr Mackay would not have been able to claim from parliamentary
allowances for the Bromsgrove property had he designated his London
property as his main home.
Was Mr Mackay's decision to make claims for his
London home above reproach?
242. I have considered additionally whether Mr Mackay's
decision to make claims for his London home could be held to be
above reproach. I have done so in case the Committee were to consider
that Mr Mackay, contrary to my conclusions, had correctly identified
the Bromsgrove property as his main home.
243. The introductions by the Speaker to the editions
of the Green Book from 2003 require that Members' claims should
be above reproach. A similar requirement was included in the general
principles in the Green Book from April 2009. I consider that
these were articulations of an expectation which has been fundamental
to Members' expenses claims for many years and is consistent with
the provision in the Code of Conduct for Members of Parliament
that they should "never undertake any action which would
bring the House of Commons, or its Members generally, into disrepute"
(paragraph 15 of the Code).
244. I consider that Mr Mackay's decisions meant
that his claims were not above reproach. The reason I have come
to this conclusion is because I consider that 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.
Overall conclusion: Mr Mackay
245. My overall conclusion, therefore, is that Mr
Mackay was in breach of the rules of the House in wrongly designating
his Bromsgrove property, in his wife's constituency, as his main
home from 1997 to 2009. In my judgement, on the basis of all the
evidence, it was not his main home. I consider also that the result
of the arrangement was that his claims were not above reproach.
This was a serious misjudgement which was sustained over more
than 12 years. It resulted in very significant sums of public
money being paid to Mr Mackay. It could very easily have been
avoided at the outset by Mr Mackay recognising that London was
his as well as his wife's main home. And it could have been avoided
if Mr Mackay had recognised that it was anyway not acceptable
for him and his wife to receive payments from parliamentary allowances
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.
246. Mr Mackay has drawn attention to the rule introduced
in May 2009 and included for the first time in the July 2009 edition
of the Green Book. This required Members who were married to each
other to nominate the same main home and claim the maximum of
only one person's allowance. He has argued that this is evidence
that married couples could nominate different main homes before
then. I do not agree. I accept that the rule clearly tightened
the previous arrangement (it restricted the couple to sharing
the one allowance). But in respect of the main home nomination,
I consider that it made explicit what I believe was already implicit
in the rules: Members who were sharing their lives and their two
homes could not acceptably claim in a way which had the effect
of relieving them of the costs incurred on both those homes.
247. It is fair to note that Mr Mackay believed that
he was only acting on the advice of the then Head of the Fees
Office, given to him in 1997. But I agree with Sir Paul Kennedy
that, if that was the advice, it was clearly mistaken and Mr Mackay
should have recognised that. I consider also that Members have
a personal responsibility in respect of all their decisions in
relation to their allowances, and 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. Even if
his instinct had not told him that it was wrong for him and his
wife to make claims on both their homes, he would have been well-advised
to have consulted the Department again in the period from 1997
to 2008, as the various editions of the Green Book, and the expectations
on Members, changed. While his arrangements were openly declared
in his nomination and, since 2003, his claim forms, and the Department
has fairly accepted that it was reasonable for him to infer from
the Department's silence that there was no problem, it was unwise
of him to assume that silence meant well considered consent.
248. While neither he nor his wife formally registered
that they were sharing their properties with each other, and I
consider that it would have been sensible for them to have done
so, I do not think it proportionate to find against Mr Mackay
or Ms Kirkbride on this account. Their arrangements should have
been well known to the Fees Office, since they made no secret
of their designation in their nominations or, since 2003, their
individual claims forms.
249. Mr Mackay has pointed out reports of certain
Ministers and a former Speaker claiming for a second home while
living in funded accommodation (grace and favour homes). I do
not consider that such a practice—which I believe has now
been ended—can be used as a basis for justifying Mr Mackay's
arrangements, which I consider on their merits to be in breach
of the Green Book rules and the Code of Conduct. Had such an arrangement
been intended to have been available to Members married to each
other, then the Green Book would have needed to have made provision
for this. Mr Mackay was only able to have such an arrangement
because of the way he identified his main and second homes.
250. It is perhaps understandable that, with the
pressure of other business, Mr Mackay seems never to have reviewed
his initial decision until it came to light in 2009. He was unwise
not to have done so. Had he done so, however, his decision may
not have been any different. I regret that, even now, and after
extensive independent reviews, Mr Mackay has not recognised or
accepted what I consider to be his serious misjudgement. He has
already paid a high price for that misjudgement. But it is, I
believe, unfortunate that he continues to believe he was in the
right.
MS JULIE KIRKBRIDE
251. I have received no complaint against Ms Kirkbride
in respect of her decision to identify London as her main home
and make claims on her Bromsgrove property. She will have known
that that property, which she shared with her husband, had been
identified by him as his main home for the purpose of his allowance
claims on the London home. I draw no conclusion on her conduct
in this respect or on how far she, as opposed to Mr Mackay, bore
some responsibility for the deeply flawed arrangement which existed.
252. My view on Ms Kirkbride's decisions which are
the subject of the complaint against her, are influenced by whether
the claims she made were made for her second home, or whether
they were made for what was in reality her husband's main home.
I have concluded that Mr Mackay was wrong to designate the Bromsgrove
property as his main home. Given that, it would be unreasonable
to hold that Ms Kirkbride could not make legitimate claims from
parliamentary resources for the home in her constituency which
she had identified as her second home.
253. The questions I have considered in relation
to this complaint, therefore, are:
a) Was Ms Kirkbride within the rules in claiming
interest on an additional mortgage to pay for an extension to
her Bromsgrove property?
b) Should Ms Kirkbride have taken account of her
brother's presence in the property in the claims she made against
parliamentary allowances?
Was Ms Kirkbride within the rules in claiming
interest on an additional mortgage to pay for an extension to
her Bromsgrove property?
254. Ms Kirkbride added to the joint mortgage she
shared with Mr Mackay in April 2008. She used that extension to
the mortgage to improve the Bromsgrove property by building a
third bedroom for it. The rules at the time allowed Members to
claim for the interest on a mortgage taken out to improve the
property. That was a change from the previous rules. The rules
introduced in 2009 no longer allowed this. The window for such
improvement claims lasted, therefore, from July 2006 to March
2009. I have considered Ms Kirkbride's claims against the rules
as they were at the time.
255. As with any claim against the ACA, the additional
costs arising from such an improvement still needed to be necessary
for the purpose of performing the Member's parliamentary duties.
I consider that Ms Kirkbride has established that she met that
test. The Member needed a room for the person who looked after
her child while she was fulfilling her parliamentary duties. It
was not reasonable to expect the child carer—whoever they
might be—to share a bedroom with the growing child. It was,
therefore, in my judgement within the rules as they were at the
time for Ms Kirkbride to have claimed the interest costs of the
extended mortgage necessary for this addition to her property.
256. The rules provided that Members should "seek
advice on what is allowed before committing to building works
of any sort" (Green Book for 2006, paragraph 3.14.1).
Ms Kirkbride appears to have sought the agreement of the Department,
at least orally, sometime before June 2008. That was in my judgement
likely to have been sufficiently close to her extending her mortgage
in April 2008 to have met the requirement to seek prior agreement.
257. I conclude, therefore, that Ms Kirkbride was
within the rules in claiming interest on the additional mortgage
which she, with her husband, took out in April 2008 to extend
her Bromsgrove constituency property by building a third bedroom
for it so that she had somewhere for her child carer to stay while
she was busy on her parliamentary duties.
Should Ms Kirkbride have taken account of her
brother's presence in the property in the claims she made against
parliamentary allowances?
258. The rules require that Members should not claim
for the living costs of anyone other than themselves. It is necessary,
therefore, to consider whether the additional costs incurred as
a result of building the third bedroom, and other costs claimed
under the Additional Costs Allowance, should have taken account
of the use of the property by Ms Kirkbride's brother.
259. The evidence from Ms Kirkbride and her brother
is that he stayed overnight at the property principally to look
after Ms Kirkbride's young son. Occasionally, he would stay overnight
in order to assist her and her constituency staff with their IT.
The evidence from Ms Kirkbride and her brother is that the use
of the address in registering with Companies House was a mistake
and that in fact the company so registered never did business.
Their evidence is that Mr Kirkbride was eligible to register to
vote in the constituency; it did not need to be his main home.
260. I consider 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. Ms Kirkbride's son was
at an age when it was essential that someone should be with him
in the evening and overnight. The arrangement enabled Ms Kirkbride
to continue with her constituency duties as a Member of Parliament.
Her husband had his own parliamentary duties. In general, Ms Kirkbride's
brother was there only when she and her son were staying there.
The additional use of the property by her brother when Ms Kirkbride
and her son were not there was not, in my judgement, sufficiently
regular to suggest that the cost of these stays should have been
reflected in the claims Ms Kirkbride made on parliamentary allowances.
261. The circumstances which led to the overnight
stays of Ms Kirkbride's brother in her constituency home were,
therefore, in my judgement, significantly different from those
which I found in the case of the adult daughter of Mrs Anne Main,
the Member for St Albans.[176]
They were significantly different in terms both of the reasons
for the overnight stays and the arrangements for such stays. I
have found that Mr Kirkbride's stays were properly in support
of Ms Kirkbride's parliamentary duties. Ms Kirkbride was, therefore,
within the rules in treating Mr Kirkbride's living costs in her
constituency home as having been incurred for the purpose of performing
her parliamentary duties and not for personal purposes. I did
not find this in respect of the use Mrs Main's adult daughter
made of Mrs Main's constituency property.
Overall conclusion
262. My overall conclusion in respect of the complaint
against Ms Kirkbride, therefore, is that Ms Kirkbride was within
the rules of the House as they were at the time in claiming interest
on the extension to her joint mortgage which she used for the
improvement of her Bromsgrove property, in order to enable her
to conduct her parliamentary duties in her constituency. I conclude
also that she was within the rules in not reflecting in her claims
the cost of her brother staying overnight in the house, principally
to look after her son when she and he were staying there so that
she could continue to carry out these duties. I do not, therefore,
uphold the complaint against her.
7 October 2010John Lyon CB
52 WE 1. Mr Goggins had initially written to me about
this matter on 23 October 2009, and had been asked by my office
on 28 October to provide sufficient evidence to justify at least
a preliminary inquiry. That exchange is not included in the written
evidence. Back
53
WE 2 Back
54
This was an article in the News of the World of 24 May
2009. See WE 77. Back
55
WE 5 Back
56
WE 2, WE 3, WE 5 Back
57
Relevant extracts are at WE 4 and WE 5 Back
58
Not included in the written evidence Back
59
WE 6, WE 57. For a full summary of my letter to Mr Mackay, see
below, paragraph 35. For a full summary of my letter to Ms Kirkbride,
see below, paragraph 151. Back
60
WE 7 Back
61
Sir Thomas Legg's report on his review of the validity of payments
of the Additional Costs Allowance from 2004-05 to 2008-09 was
published on 4 February 2010 with the First Report of the Members
Estimate Committee, Session 2009-10 (Review of past ACA payments,
HC 348). Back
62
WE 8 Back
63
WE 9 Back
64
WE 10 Back
65
The Code of Conduct for Members of Parliament provides at paragraph
18: "Members shall co-operate, at all stages, with any investigation
into their conduct by or under the authority of the House." Back
66
WE 6, WE 57 Back
67
WE 11 Back
68
Not included in the written evidence Back
69
WE 6 Back
70
See paragraphs 27-34 above. Back
71
WE 12 Back
72
The correct date was September 1999. See para 64 and WE 26 below.
Back
73
A summary of the figures provided by Mr Mackay is reproduced at
WE 13. Figures provided by the Department of Resources are at
WE 25. Back
74
WE 14 Back
75
Members Estimate Committee, First Report of Session 2009-10, Review
of past ACA payments, HC 348, Appendix 1. The relevant extract
is reproduced at WE 15. Back
76
Members Estimate Committee, First Report of Session 2009-10, Review
of past ACA payments, HC 348, Appendix 2. The relevant extract
is reproduced at WE 16.
Back
77
WE 17, WE 14 Back
78
WE 18 Back
79
WE 19 Back
80
WE 14 Back
81
WE 12 Back
82
WE 20 Back
83
WE 21 Back
84
See WE 15 and WE 16. Back
85
WE 22 Back
86
WE 15, WE 16 Back
87
WE 23 Back
88
WE 24 Back
89
A table summarising these claims is at WE 25. Back
90
WE 26 Back
91
See WE 16. Back
92
See WE 2. Back
93
WE 27 Back
94
WE 28 Back
95
WE 31 Back
96
WE 29 Back
97
WE 30 Back
98
WE 32, WE 29, WE 30 Back
99
WE 33 Back
100
WE 34 Back
101
WE 35 Back
102
My office confirmed this date through Land Registry records. Back
103
WE 36, with an extract from WE 35 and WE 33 Back
104
WE 37 Back
105
WE 38 Back
106
WE 39 Back
107
WE 40 Back
108
WE 41 Back
109
WE 35 Back
110
WE 37 Back
111
WE 42 Back
112
WE 21 Back
113
WE 43 Back
114
WE 45 Back
115
WE 44 Back
116
WE 42 Back
117
WE 46 Back
118
WE 47 Back
119
WE 33, WE 47, WE 48 Back
120
WE 33 Back
121
WE 47 Back
122
WE 49 Back
123
WE 50 Back
124
WE 51, WE 48 Back
125
WE 33, WE 47 Back
126
WE 47 Back
127
WE 52 Back
128
WE 53 Back
129
WE 54 Back
130
WE 55 Back
131
WE 56 Back
132
WE 15, WE 51 Back
133
WE 16, WE 62 Back
134
WE 57 Back
135
See paragraphs 27 to 34 above. Back
136
WE 58 Back
137
A summary of the figures provided by Ms Kirkbride is reproduced
at WE 59. Figures provided by the Department of Resources are
at WE 73. Back
138
WE 60 Back
139
WE 3 Back
140
WE 57 Back
141
Members Estimate Committee, First Report of Session 2009-10, Review
of past ACA Payments, HC 348, Appendix 1. The relevant extract
is reproduced at WE 61. Back
142
Members Estimate Committee, First Report of Session 2009-10, Review
of past ACA Payments, HC 348, Appendix 2. The relevant extract
is reproduced at WE 62. Back
143
WE 61 Back
144
WE 62 Back
145
WE 63, WE 60
Back
146
WE 61, WE 62 Back
147
WE 64 Back
148
WE 65 Back
149
WE 66 Back
150
WE 58 Back
151
WE 67 Back
152
WE 68 Back
153
WE 69 Back
154
WE 70 Back
155
WE 64 Back
156
WE 62 Back
157
WE 71 Back
158
WE 61, WE 62 Back
159
WE 72 Back
160
Committee on Standards and Privileges, Eighth Report of Session
2009-10, HC 353, para 9 Back
161
Speaker's Conference on Parliamentary Representation, Final Report
of Session 2009-10, HC 239-I, para 271. Ms Kirkbride was a member
of this Conference. Back
162
WE 74 Back
163
Ibid. Back
164
WE 61 Back
165
WE 62 Back
166
WE 73. These figures differ marginally in some years from those
provided by Ms Kirkbride (see WE 59). Back
167
WE 75 Back
168
WE 16, WE 62 Back
169
WE 76 Back
170
WE 1 Back
171
WE 77 Back
172
WE 78 Back
173
WE 72 Back
174
WE 79 Back
175
WE 14 Back
176
Committee on Standards and Privileges, Eighth Report of Session
2009-10, HC 353 Back
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