CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 960 -i

HOUSE OF COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE THE

PROCEDURE COMMITTEE

PROCEDURE COMMITTEE

WEDNESDAY 27 APRIL 2011

DR MALCOLM JACK

Evidence heard in Public

Questions 1 - 28

USE OF THE TRANSCRIPT

1 . This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2. The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the Procedure Committee

on Wednesday 27 April 2011

Members present:

Mr Greg Knight (Chair)

Mrs Jenny Chapman

Mr Roger Gale

Mr James Gray

John Hemming

Mr David Nuttall

Bridget Phillipson

Jacob Rees-Mogg

Examination of Witness

Witness : Dr Malcolm Jack , Clerk of the House, House of Commons, gave evidence.

Q 1 Chair: Thank you for coming, Dr Jack. We are grateful to you for giving us the benefit of your opinions. Do you want to say anything at the outset?

Dr Jack: Thank you very much for your invitation, Chair.

We are dealing with a fairly specific matter this afternoon, the addition of lay members to the Standards and Privileges Committee. All I say at the outset is that I entirely understand the policy reasons that lie behind the idea, which was originally proposed by the Committee on Standards in Public Life, and I entirely understand why the proposal has come forward.

In December, the House resolved that there would be lay members. I am concerned about how that can be done without, as I see it, affecting some of the privileges of the House. I just want to say that I understand why it has been proposed.

Q 2 Chair: By saying that you rather indicate that it is not an idea on which you are particularly keen.

Dr Jack: Clerks are very cautious about things for which there are no precedents, and there are no precedents of a convincing nature for bringing outsiders to act in the same capacity as elected Members.

Q 3 Mr Gale: You have said, "There is a risk that the addition of lay members to a committee would alter its character to such an extent as to cast doubt on whether its proceedings were actually proceedings in Parliament protected by Parliamentary privilege." So you appear to be saying that the privilege itself is under duress. What is your real concern about the privilege implications of adding lay members to the Committee?

Dr Jack: Perhaps I could provide a little background, which may be helpful. As Members know very well, article 9 of the Bill of Rights is where modern privilege is codified. The privilege, of course, is much more ancient than article 9, but that is where it is codified. That is where freedom of speech and proceedings of the House are absolutely protected. So there is absolute protection for anything that is done or said in the House, but that only covers things done or said by Members of the House. Nobody else participates in proceedings in the House .

By very long-standing practice, those who assist Committees-Committee Clerks, witnesses and so on-are also protected by parliamentary privilege for what they say. What I am saying before the Committee right now, for example, is protected by parliamentary privilege.

It is not clear that lay members would be protected , but perhaps we will come back to that later. As usual, Professor Sir William McKay puts it rather more succinctly than me. The question is whether a Committee constituted of people who are not Members of the House would actually be involved in the proceedings of the House-would those be proceedings? Of course, the other thing to bear in mind is that it is the courts that determine the ambit of privilege, rather than the House.

Q 4 Chair: But we could pass legislation to say that anything a Committee with lay members did was deemed to be proceedings.

Dr Jack: Yes, absolutely. That is right. That is what Bill McKay suggested in his evidence. Otherwise, there is a question of a challenge of some sort as to whether, in a fairly contested situation, the activities of such a Committee were matters of privilege. Some of these S tandards inquiries are not exactly neutral affairs. They are affairs where there is an adversarial contest going on, if I can put it that way.

Q 5 Mr Gale: Setting aside the thorny issue of precisely how these great and good people will be chosen and by whom, if they are at all, there is then the issue of whether they are allowed to vote, given that they are not Members. What is the implication, Dr Jack, of whether they can vote? How do you draw the line between something that is not contentious at all and something that is highly contentious?

Dr Jack: The voting on and moving of amendments in Committee are proceedings. There is no question about that. I understand that the Committee on Standards in Public Life recommended full voting rights for lay members, but if they were to have those full rights, they would be participating in the proceedings, which would question whether those proceedings were proceedings in Parliament. They could be challenged.

Q 6 Mr Gale: I may be pinching someone else’s turf here, but we come back to Mr Anderson in 1875 who challenged the fact that it was not possible to challenge on the Floor of the House those people voting, because they were not Members. It is a murky area indeed.

Dr Jack: That is right. You are referring to that 1876 Select Committee, mentioned in the very useful note that your Clerk produced for you. There is in its Report that rather Victorian and resonant phrase, "inconsistent with ancient parliamentary usage". That was the Committee’s conclusion, which was rather sonorous, but it still applies.

Q 7 Mr Gale: From my tone, you will gather that I am less than enamoured with most of this, but the other area that does not seem to help us very much-you touched on this in your opening remarks-is that save for a skirmish in New South Wales and bits and bobs in Canada, absolutely nobody else seems to have gone down this route at all. Are there any precedents? You have referred to the value of precedents, but there don’t seem to be any.

Dr Jack: No. That is why I said that as Clerk of the House, I am rather cautious. You have had a paper, which we gathered , with such responses as came from our Commonwealth colleagues. As the Committee knows, the Commonwealth community is extremely important in this matter of privilege. We are part of a common community. As you say, Mr Gale, the precedents are very, very thin. The Australian House of Representatives says that it has had no such experience, apart from that of some people who have been drafted in as advisers. That is not uncommon in many of the jurisdictions. The Canadians say the same, although they seem to suggest that privilege would cover lay participation. But on the other hand, they prevented participants from moving motions or voting-the very thing that we are talking about.

The New South Wales example you mentioned is the only solid one, and I think this rather goes back, Chair, to your earlier remark that you could do this by legislation, because this was in fact done by legislation in the case of the provincial legislature in Australia. There was actually an Act, and the Act said that the participation of the lay members would bring them within the scope of article 9.

Q 8 Chair: But if the idea of having lay members is to increase public confidence in the process, do you think that this could be achieved by allowing lay members not to vote but to express a view at the end of the Committee’s deliberations along the lines of "we concur" or "we disagree", followed by a short statement on why they disagree? That would be the other way of dealing with it.

Dr Jack: As I said at the beginning, I am very conscious of the policy motivation-if one wants to put it that way-to bring some objectivity or greater transparency and public trust into the self-regulatory process. But I think that is absolutely righ t, and I do suggest that in my paper. There are two things. There could be a stipulation in the Standing Orders that the quorum of the Committee would have to consist of a certain number of lay members. That would ensure that when the Committee met, the lay members had to be present. Secondly, as you say, their opinions could be recorded and reported to the House, without their actually getting into the interstices of proceedings-voting or moving amendments-so that their opinions and views would be absolutely transparent and public, and there would be no question of trying to brush them aside.

Q 9 Chair: If legislation were to be pursued to make it quite clear that the participation of lay members in the decision-making process was to be deemed to be part of our parliamentary proceedings, and the Act were short and unequivocal, what concerns do you have that it might still be subject to legal challenge?

Dr Jack: Well, that raises the question that anything that is put in legislation is justiciable. Because it is in legislation, it is for the courts to interpret the meaning of law. But I think the risk would be small, particularly if-the Committee will know that the Government are proposing a privileges Act-this were to be part of that Act. I have brought with me the Australian Parliamentary Privileges Act 1987. It does not cover something like this, but it is a privileges Act-such a thing exists. Our Australian colleagues tell us that it has not led to a great deal of litigation in the courts about the meaning of the provisions in the Act. So I think there would still be a residual risk, but it would be much less. If it were in a privileges Act, it would be less likely to become the target of a challenge.

Q 10 John Hemming: We have a Standards and Privileges Committee that previously was a Privileges Committee and the word "standards" was added. Why not separate the two out?

Dr Jack: There is a lot to be said for that. As you know, the standards element came up in the mid-’90s, after the so-called cash-for-questions scandal. I should have looked this up before I came; I am sorry I didn’t. At the time, it was thought that tacking it on to an existing Privileges Committee was the easiest way to deal with it, but in my view, the functions are completely different.

A Privileges Committee is concerned with things like Select Committee evidence, leaks from reports, interruptions of proceedings, problems with witnesses, serving legal papers on Members and, recently of course, hacking. Those are a different kind and category of business than the standards business, which is really mainly based around the advocacy rule, registration of interests-all the sort of things that you, as Members, will be very familiar with-allowances and their misuse, stationery and all those sort of things. I think that they really are a completely different set of matters. I think it says in the paper that the Committee on Standards in Public Life recognises that distinction, and it is concerned with standards and not with privileges. So I think that the answer is yes.

Q 11 John Hemming: If you were to separate the two out, would you try to maintain the same membership, or actually have a different membership for each?

Dr Jack: It could overlap in some ways, but I think the Privileges Committee should certainly be a Committee of Members of the House only. I really do not think that lay members should sit on a Privileges Committee. That would be quite wrong.

Q 12 John Hemming: Do you think that that would be a better way of doing things than having a single Committee with Sub-Committees?

Dr Jack: Yes, I do. The Sub-Committee route would lead to difficulties about different decisions in the Sub-Committee and the main Committee, and so on and so forth. I think go for separation. I was about to say that a Privileges Committee-I know that Mr Hemming has a particular interest in the subject-would not be in constant session, but that is maybe a risky thing to say.

John Hemming: Yes, I know. I’ve only raised five cases recently.

Dr Jack: At any rate, the old Privileges Committee didn’t meet very often.

Q 13 Mr Gray: Is there a linkage, therefore, in this? Supposing that we were to reply to the request that we have had by saying that we can understand the policy reasons for having lay members on the Standards Committee, but we would only consider accepting that or agreeing with it if there were to be that separation of powers between the two halves. Is there logic in that somewhere?

Dr Jack: Yes. You’re the Procedure Committee. It’s perfectly open to you to make such a suggestion. In fact, that is where the House would expect such a suggestion to come from.

Q 14 Mrs Chapman: The call for having lay members on the Committee seems to have come as a result of the expenses scandal. Obviously, we now have IPSA, which is run by lay people. Do you think that that changes the terms of this at all?

Dr Jack: In respect of the fact that standards matters are still within the jurisdiction of S tandards and P rivileges , no. IPSA is concerned with the regulation of the allowance system, and so on , but the control of conduct cases is still within the House, so I don’t think that it has changed. In fact, if I may say so, the Chairman will remember that this was one of the things that alarmed me when I saw the first draft of the Parliamentary Standards Bill-namely, that this function was going to be transferred to IPSA, and I rather forthrightly spoke out against that.

Q 15 Mrs Chapman: So you don’t think that it affects the working of it?

Dr Jack: No, I don’t think so.

Q 16 Mrs Chapman: I understand that the Standards Committee has broader functions. What is your opinion about how lay members would be able to contribute to that?

Dr Jack: I understand the reasons why this policy is being put forward. They would bring, presumably, expertise and experience of a professional nature and so on. It is not uncommon in other professional bodies to have lay members sitting on ethics committees, which this would be. Of course, it would also be a boost to public confidence that the system had this objective element. There can be advant ages provided that they are added in such a way that they don’t raise these privilege problems.

Q 17 Mr Nuttall: Without wishing to prejudge in any way the outcome of our inquiry, if we were to proceed with the idea of having lay members on the Committee, do you feel that two is the right number, or three or more than three? To what extent would one or more of them have to be present at every meeting to make the meeting legal? Is there a danger that if we said that a lay member had to be present they would then have the capacity to hold that Committee to ransom by simply not turning up?

Dr Jack: These really are matters of judgment. One cannot be absolutely conclusive about this. I have suggested in my paper that there might be a requirement in the quorum of the Committee, which would be put in the Standing Orders of the House, that lay members would have to attend, merely to confirm the fact that the House wasn’t ove rriding the idea of having lay people on the Committee. What proportion of the quorum that should be is difficult. The majority should still rest with Members of the House. This is a Committee of the House, after all. I think they should have the majority on it at any meeting, so that the quorum would be arranged in that way.

I think in my paper I mention that we have had a bit of experience. Members will be aware that the Speaker’s Committee for IPSA, which has just been mentioned, has now appointed three lay members. They have staggered their appointments, so that one is appointed for five years; one is appointed for four years, and so on. So there is a kind of rotation and turnover. That could be a model. It depends how large you are going to make the Standards Committee itself.

Q 18 Mr Nuttall: There has been a suggestion, I think from Chris Mullin, that the Chairman of the Committee could be one of the lay members. Do you have a view about the difficulties that that might cause in procedural terms or whether there might perhaps be some benefits?

Dr Jack: It would immediately raise the problem of proceedings again. Surely, a Chairman of a Committee must be involved in proceedings, must be involved in the decision, unless, somehow, there was a provision in the Standing Orders that one of these lay members could take the Chair, still without voting rights. I think it would be pretty odd for the Chairman to be a lay member, but it is not insuperable; it is something that could be written into the Standing Orders if it was desired.

Q 19 Mr Gray: On recruitment, do you have views about the means by which these people could be recruited, bearing in mind the experience of the Speaker’s Committee on IPSA and the Parliamentary Commissioner and all that?

Dr Jack: I have set out in my paper around paragraphs 25 onwards the possible process for appointing the lay members. It would obviously need to be a transparent process in itself. The very object of the exercise of producing people who were coming with an objective and outside view might be called in question if people suddenly appeared on recommendation from someone or other. But so far as the SCIPSA is concerned, there was a competition; there was a board; and people applied. A specialist recruitment agency was used, and so on and so forth. It was a very open process, and I think the same thing would have to apply in this case.

Q 20 Mr Gray: So that openness would presumably mean that the Chairman of the Committee should not have an undue influence or involvement in the recruitment?

Dr Jack: Yes, I think that is right.

Q 21 Mr Gray: The risk of all that might be that you land with someone with an agenda, or two people who believe they are coming as reforming angels into this corrupt den of thieves. If we couldn’t influence it for the reasons you describe, we would risk recruiting the wrong kind of person for the work, which often concerns delicate matters of judgment. It is simple when it is plain black and white that a chap has fiddled something, but often these things are matters of quite delicate judgment as to whether something was intentional. If you recruited the wrong kind of person, presumably there would be a risk of there being a presumption of guilt.

Dr Jack: Yes, I think that that is right. It is also about the type of person you are trying to recruit. Would these people be legal experts? What sort of person would you be looking for? But, yes, I think that that is the case. However you do it, you would have to have an open system.

Q 22 Chair: Just for the written record, will you confirm that you were nodding to all of Mr Gray’s questions?

Dr Jack: Yes, I was nodding. I am so sorry; I should not nod, but articulate my nods.

Q 23 Mr Gray: On the question of who they are and what their abilities are, do we want just the great and the good? Do we want lots of people who have been on quangos and things, or do we want somebody with a fresher mind?

Dr Jack: These are difficult questions.

Mr Gray: That’s why I am asking them.

Dr Jack: Exactly; absolutely. I would have thought that if the main object is to instil public trust in the system, one should perhaps go a bit wider than the great and the good by recruiting people who do not normally fall into that category. On the other hand, for reasons you have just said, you would want people with judgment and some special qualities to bring to the deliberations. There would have to be a balance.

Q 24 Mr Gray: Lastly then, let’s suppose that we’ve appointed two people through a transparent process and there is at least a possibility that those people arrive with a determination to be seen to be cleaning the place up. The Committee is split in its judgment on some matter, with the majority of elected Members going one way and the lay members going the opposite way. Under those circumstances, or a great many other circumstances, how would you preserve the secrecy of the proceedings of the Committee? Surely, some lay people would say, "Well, it’s our duty now to go to speak to The Daily Telegraph because we think all you people are in it together."

Dr Jack: So far as the deliberations are concerned, there would have to be some undertaking of confidentiality, otherwise I don’t see how a Committee could function properly. Any Committee has to have a notion of confidentiality while it is deliberating. Under the proposal that I have put forward to you, that would not necessarily be such a problem. First of all, these members would not be voting.

Q 25 Mr Gray: That has not been decided-they may, or they may not. One proposal is that they should be voting members.

Dr Jack: But I am saying that my proposal is that they shouldn’t. If they shouldn’t, the problem is removed. Secondly, if they-

Q 26 Mr Gray: Sorry to interrupt. Even if they weren’t voting, they could well take a diametrically different view to the view of the elected Members.

Dr Jack: That is where the second peg of my suggestion comes. Their view should be recorded and published with the Committee’s report to the House. So they would be subjects or-if I can jest for a moment-victims of transparency themselves, because the reasons for their views would have to be stated.

Q 27 Mr Gray: I have one last question on confidentiality. We are subject to the strictures of the Committee ourselves. If we reveal a report before it has been published, we are hauled in front of the House and/or the Committee. Even if the lay members had signed a confidentiality agreement, what sanctions would there be? Would they be hauled before the Committee?

Chair: The sanctions would be this-wouldn’t they?-if we split the two Committees and had a Standards Committee and a Privileges Committee and the lay members of the Standards Committee started to leak against the wishes and undertakings given to that Committee, the lay members of the Standards Committee would be referred to the Privileges Committee.

Dr Jack: That could well be the case.

Mr Gray: They would be in breach of parliamentary privilege by doing that.

Dr Jack: They would be committing a contempt of some sort, just as if your staff suddenly started leaking, that would amount to a contempt.

Q 28 Mr Gale: Can I just come back to the selection process? There is a revolving door of people, rather like the rep that the BBC producers use on current affairs programmes. There are the so-called great and good who crop up with tedious regularity on absolutely everything. I’m not clear, if we go down this road and recommend that there should be lay members-even accepting the separation of the Committee, which seems to me to be the least worst of the proposals that have been put forward-who will pick the lay members and by what yardstick will they be appointed? We’ve established there is no precedent, but do we have any idea how that might be done to avoid the revolving door process?

Dr Jack: I suppose that it would begin with the way the advertisement for calling them was worded . You would start off with a recruitment process, and you would write that in such a way as to limit the kind of people who would be eligible. These are quite serious matters that would have to be looked at very carefully.

In the case of the Speaker’s Committee for IPSA, the Speaker himself decided to stand back a bit from this and the Clerk Assistant chaired the actual recruitment board-there were Members on it as well. 1 You could have some sort of mixture of that kind. Obviously, I think there would certainly have to be a Member element on the recruitment board for these people. These are difficult matters, and I think you’d have to sit down with a list of what it was that the process was aiming to achieve, as Mr Gray has said. What sort of persons were you trying to get?

Chair: Does any other member of the Committee want to ask a question? Dr Jack, do you want to add anything?

Dr Jack: No, I don’t think so. I think we’ve covered the ground, particularly mentioning, as I said at the beginning, that there are no clear precedents and that there are no Commonwealth precedents. I think I’ll just end on that note.

Chair: Can I thank you for your evidence on behalf of the Committee? It will be invaluable in enabling us to make a decision, so we thank you for your time.


[1] Witness correction: The recruitment board consisted of officials and external members only. See Memorandum (P 103) paras 25 to 27.

Prepared 15th June 2011