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
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."
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
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.
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
10. As the Commissioner has stated, the six Members
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."
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'.
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
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.
In our judgment, the Code applies to a Member in circumstances
whereas in the cases in pointthe 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. 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.
17. The House may not interfere with the pension
entitlement of a former Member, which is a matter governed by
statute. 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
Second Report from the Culture, Media and Sport Committee, Session
2009-10, Press standards, privacy and libel, Annex Back
Appendix 1, paragraph 655iii Back
Appendix 1, paragraph 655iv Back
Appendix 1, paragraph 655ii Back
Appendix 1, paragraphs 406 and 407 Back
Appendix 1, paragraph 655v and vi Back
Erskine May, 23rd Edition, pp 156-160 Back
Erskine May, 23rd Edition, p 163 Back
Erskine May, 23rd Edition, p 32 Back