Sir John Butterfill, Mr Stephen Byers, Ms Patricia Hewitt, Mr Geoff Hoon, Mr Richard Caborn and Mr Adam Ingram - Standards and Privileges Committee Contents

General considerations

7. Although the Commissioner has very properly considered each case separately and on its own merits, he has also noted that there are some procedural issues which apply, to a greater or lesser degree, to all the cases. We consider those issues in the following paragraphs. We then consider the options available to the House in dealing with a breach committed by a Member after that Member has left Parliament.

Conduct of those who carried out the sting

8. The Commissioner has made it clear in his memorandum that it is not for him to pass judgment on the conduct of those involved in the duping of the former Members who are the subject of this Report: the reporter, the production company, the broadcaster or the press. As the Commissioner states: "If there are any questions as to the conduct of any of those individuals or bodies, that is a matter for others."[3]

9. The relevant body in Parliament to investigate such matters is the Culture, Media and Sport Committee. In its Second Report of Session 2009-10, Press standards, privacy and libel, the Committee referred to the code of practice of the Press Complaints Commission, which under the heading "Clandestine devices and subterfuge" includes the following:

    i. The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; … .

    ii. Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.[4]

We understand that detecting or exposing serious impropriety is considered by the PCC to provide a public interest justification both for clandestine recording and for subterfuge. We accept that some breaches of the Code of Conduct of the House of Commons are likely to amount to serious impropriety. But we consider that where subterfuge fosters rather than exposes such impropriety it can cross the line into entrapment, and when that is so the role of those setting the trap may be open to question.

Should the Members have fallen for it?

10. As the Commissioner has stated, the six Members were "duped".[5] The Commissioner has not considered whether the Members should have spotted the subterfuge; he has quite rightly based his inquiry on what the Members thought they were doing. He has also quite rightly judged their conduct against what they might reasonably have expected would happen: that the statements each made in the course of the meeting with someone they understood to be working on behalf of an American company would be relayed back to that company. Although it was reasonable for them to expect that what they said would not be published, they were not speaking in complete confidence. Neither were they having an "informal chat"; as the Commissioner has put it, each interview was "a discussion with a purpose."[6]

11. We feel less constrained than does the Commissioner when it comes to commenting on this aspect of the conduct of our former colleagues. We accept, as does the Commissioner, that the flaws in the cover story provided by those carrying out the deception are more obvious in hindsight than they would have been at the time. We also understand, perhaps better than most, the desire of anyone who is leaving Parliament to provide for a secure future. But we are still surprised that experienced MPs fell for it. They should have known better. Their behaviour raises serious questions about their judgment.

Accuracy of the record

12. We are pleased that the Commissioner was able to obtain from the production company a certified transcript of each of the six 'interviews'.[7] Although the quality of five of the transcripts appears to be generally good, there are sections where what was said is indistinct. But each Member was able to challenge the accuracy of the transcript and one (Mr Hoon) did so. Like the Commissioner, we are satisfied that the transcripts provided sufficient basis for him to ask the former Members to explain what they were recorded as saying.

Application of the Code

13. Mr Hoon sought to argue that the Code of Conduct should not be applied to many of the statements and actions which have been covered in the Commissioner's inquiry. Mr Hoon's contention was that he was discussing what he might do after leaving Parliament, when he would no longer be subject to the Code; that in any case his employment prospects were not covered by the Code, which explicitly states that it does not apply to what Members do in their purely private and personal lives; and that meetings he had had while still a Member and which he referred to in the course of the meeting on 3 March were carried out in a personal capacity, not as an MP.[8]

14. The Commissioner accepts that the Code does not apply to actions which a Member suggests he or she may carry out after leaving Parliament. But it does apply to activities undertaken while still a Member, including the meeting each Member held with an undercover reporter. The Commissioner also takes the view that the positions for which Mr Hoon and the other Members believed they were being considered were an aspect of their public lives, in which connection he notes that the employment of former Ministers is regulated by an Advisory Committee on Business Appointments.[9] In our judgment, the Code applies to a Member in circumstances where—as in the cases in point—the fact that the Member is an MP is relevant. In all the cases considered in this Report, the Members' status and record as an MP (and in all but one case also as a Minister) appears to have been the reason why they had been invited to the meeting. This was not about their purely private or personal lives.

15. Mr Hoon made similar points directly to us, which we summarise later in this Report.

Sanctions against former Members

16. We are unaware of any modern precedent for punishing a former Member for misconduct committed while still a Member. The range of sanctions available to the House when dealing with such a breach must be regarded as very limited. The options of requiring an apology on the floor of the House or of suspension from the service of the House are of course no longer applicable in such cases. It is commonly supposed that the House has untrammelled power to fine or to imprison offenders, but no-one has been fined by the Commons since 1666 and the last committal of an offender was in 1880.[10] The use of these powers would be a major step; it is not a step we invite the House to take. It is also some time since anyone was summoned to the bar of the House to be reprimanded or to apologise, the last case being in 1957.[11]

17. The House may not interfere with the pension entitlement of a former Member, which is a matter governed by statute.[12] The House does, however, retain control over access to its precincts. The current rules allow former Members to apply for and be issued with a photopass, which grants them privileged access to parts of the Parliamentary estate and to some of the facilities located on the estate. This entitlement can be suspended or withdrawn.

18. The principal sanction, however, is and will in all likelihood remain the damage which an adverse finding by the Commissioner, backed up by a critical Report from this Committee, inflicts on someone whose status and, in some cases, livelihood depends in large part on their public reputation.

3   Appendix 1, paragraph 655i Back

4   Second Report from the Culture, Media and Sport Committee, Session 2009-10, Press standards, privacy and libel, Annex Back

5   Appendix 1, paragraph 655iii Back

6   Appendix 1, paragraph 655iv Back

7   Appendix 1, paragraph 655ii Back

8   Appendix 1, paragraphs 406 and 407 Back

9   Appendix 1, paragraph 655v and vi Back

10   Erskine May, 23rd Edition, pp 156-160 Back

11   Erskine May, 23rd Edition, p 163 Back

12   Erskine May, 23rd Edition, p 32 Back

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