Annual Report 2011-12 - Parliamentary Commissioner for Standards Contents



Appendix 2: Keynote Address by the Commissioner: "Lessons in Government" Oxford Seminar—Thursday 9 February 2012

1. Standards in public life. Let me begin by reading to you brief extracts from another lecture, given just over a year ago. Here's what the speaker, Lord Patten said:

"The greatest threats to peace and security come not from states that are strong but from states that are weak...What makes them especially dangerous to the rest of us is that their sovereignty is often up for sale... Corruption buys havens for organised international crime and terrorism... The Yakuza have done that in Japan, the Mafia in Italy. ... A ball and chain that China, India and Russia in particular drag behind them is corruption...India has a corrective.... It is called democracy."

2. As we come today to discuss standards of conduct in the United Kingdom Parliament, at least in as much as they affect the House of Commons, it might be worth bearing in mind Lord Patten's internationalist comments and some general lessons which I suggest might be learnt from them.

3. First, political corruption and the corruption of the state are worldwide concerns. Transparency International, who sponsored Lord Patten's lecture, put the UK 16th out of 183 countries in their latest corruption perceptions index.

4. Second, the degree of corruption is not solely a function of the wealth or poverty of each nation state. Rather it may be more a reflection of the strength of a country's democratic structures.

5. So, if that is right, it follows that the nation's health depends crucially on the strength, integrity and authority of its democratic institutions. Institutions of which in this country Parliament forms the apex. That is why, in my judgment, the standards which Parliament adopts for itself, and its performance in maintaining those standards, affect not just the reputation of the House and not just its ability to set an example for others to follow—important though these are—but high standards are essential to the health and prosperity of the country as a whole.

6. So, standards in Parliament are more than a matter of administrative or technical process. They go to the state's ability to uphold the rule of law and to maintain its economic and social health. In short, parliamentary standards matter.

7. Now let me quote from another speech, this time from the House of Commons. Here is what the speaker alleged:

"Even very recently, distinguished Members of this House have, on account of the influence exercised by them in Parliament...received remuneration in money for their services."

8. There are few more serious allegations to make of Members of Parliament than that they take money in return for their votes and it was made as long ago as 1858. Despite the problems of parliamentary corruption which he identified, the speaker, Sir James Graham, was arguing against having a specific parliamentary rule outlawing paid advocacy—since he thought publicity was sufficient punishment for anything short of a gross violation of what he called the law of Parliament. His view won the day but was to lose the battle. Just two months later, on 22 June 1858, the House agreed to outlaw paid advocacy in the terms of a resolution which remains in force to this day.

9. So what lesson do I draw from that bit of history? Well, concerns in the United Kingdom about parliamentary standards are not new. They have been there - and rightly so - as long as we have had a Parliament with power and authority.

10. So with that in mind, what have we in the United Kingdom done in recent years to provide a framework of standards within which Members of Parliament are expected to conduct their affairs on our behalf?

11. I want to suggest to you that our structure for parliamentary standards today is sustained by four main pillars. The first pillar has carved on it the word clarity. The second, openness. The third, accountability. And the fourth support.

12. Let me explain what I mean.

13. The first pillar: clarity. I don't believe you can require standards of conduct from Members of Parliament unless you have established first what those standards are to be. People need to know what is expected of them with clarity and consistency. That is all the more important as our society becomes more diverse and less homogenous. Less can be left to presumption. More must be captured in prose. So, clear standards require, in my view, a written Code: a Code of Conduct for Members of Parliament.

14. I was asked the other day whether it would help if corruption were more fully defined in the Code so that Members of Parliament would better know how to conduct themselves.

15. My answer was that I would expect Members of Parliament to know what corruption was when they saw it. They did not need a technical definition or a detailed list. What they needed in the Code was a clear and unequivocal statement of principle. And the importance of this statement of principle should not be obscured by masses of technical detail.

16. The more detailed the rules become, the more conduct becomes a question of technical compliance rather than ethical behaviour. It risks turning standards from an ethical issue into a regulatory one.

17. I think Members of Parliament should be expected to apply the principles to their own circumstances, and to make their own judgements about their conduct. But, as I shall explain, they should then be answerable for those judgements. It is important, therefore, that there should be a principles-based framework within which to work.

18. In the House of Commons, that framework is set out in a written Code of Conduct. While standards are not a 21st century invention - bribery of a Member has been prohibited since as far back as 1695 - the first time that a set of principles to guide a Member's conduct was brought together into a single Code was in 1996. The Code was based on the recommendations of a Committee established 2 years earlier by the then Prime Minister, Sir John Major. The Committee was the Committee on Standards in Public Life, and it remains in being to this day.

19. The genesis of the Committee is worth noting. It did not arrive out of some altruistic or academic view that it would be a good idea to have an independent committee of wise people advising on standards in our public life. It was not a far-sighted precautionary insight. It was instead a direct response to a parliamentary scandal. Two Members were found to have asked parliamentary questions of the Government of the day in return for cash payments. In other words cash for questions. That brought a response which has had a lasting and I believe positive effect on conduct in our public life ever since. Some good therefore came out of the bad.

20. The Code of Conduct for Members of Parliament is comparatively short at just three pages. The specific rules in relation to Members' conduct are set out in just about one page. But they are backed up by more detailed rules and guidance in relation to such matters as the registration and declaration of interests, lobbying and the use of expenses and House facilities.

21. The current Code covers only a Member's public life - their parliamentary and other public work. It does not cover what Members do in their purely private and personal lives. Perhaps reflecting the cash for questions legacy from which it arose, the Code deals principally with financial matters. So it provides rules about resolving conflicts between a Member's public and personal interests at once and in favour of the public interest. It outlaws paid advocacy - the 1858 provision - which prevents a Member taking a payment to argue their paymaster's case in the House. The Code prohibits Members taking bribes. It prohibits Members exploiting for their own financial gain, information received in confidence. It requires them to follow strictly the rules on expenses, allowances, facilities and services. It requires them to register financial interests and orally to declare their relevant interests in the House, and in communications with Ministers and others. Finally, it tells Members not to undertake any action which would bring the House of Commons, or its Members generally, into disrepute.

22. A breach of any of these rules can lead to disciplinary action against the Member.

23. In addition to these rules, the Code reminds Members of the seven general principles of conduct in public life which were also established by the Committee on Standards in Public Life in 1995. The seven principles are selflessness, integrity, objectivity, accountability, openness, honesty and leadership. The importance of these principles is that they apply to everyone in public life, from Parliament downwards. They are therefore, in my view, strong statements of principle which are the stronger for having remained in place, unchanged, over the past 16 years.

24. The Code of Conduct itself, however, has been reviewed from time to time. The Committee on Standards in Public Life recommended in 2002 that it should be reviewed once in each Parliament. And that is good advice. It suggests that the Code should have some longevity. It is not meant to be rewritten in perhaps an overhasty response to any particular incident. But every few years it should be revisited: to be sure that it still meets public expectations. And to provide Members of the Parliament at the time with an opportunity to consider and commit to the current Code. It is after all their Code. They need to understand it. They need to commit to it. And above all, they need to own it for themselves.

25. I undertook a review of the Members' Code of Conduct last year. I consulted widely, including past and present Members and the current Committee on Standards in Public Life. I then submitted my conclusions to the House of Commons Committee on Standards and Privileges, which oversees my work. They submitted a report to the House in November.

26. In my proposed revisions, I have tried to make the Code clearer and easier to read and to understand. That in my view is important for Members and for the wider public. I think it is equally important to make its operation and effect as predictable as possible. I have proposed, therefore, that the Code should distinguish clearly between its aspirational sections which identify in general terms what is expected of Members, including those seven principles of conduct, and the more specific rules to which all Members must adhere. I have also suggested making clearer in the Code how Members are to be held accountable for any alleged breach of those specific rules.

27. More controversially, perhaps, I have recommended that the Code should normally be confined to conduct which relates in any way to membership of the House, and that it should not continue to apply to all aspects of a Member's public life. This is because I do not believe that a parliamentary code is the place to regulate Members' other public activities, such as their work as a barrister or on the board of a public company. There are separate regulators for that.

28. But I have recognised also that being a Member of Parliament is not a 9-5 job but more a way of life. As a Member of Parliament, you are never off-duty. So, I have argued that in extreme circumstances, a Member's conduct, even if it is unrelated to their membership of the House, could in practice cause significant damage to the reputation and integrity of the House as a whole or of its Members generally. To protect Parliament, the House should not be powerless to respond. Instead, I have advised that in such extreme circumstances, the House of Commons should be able to take action, including disciplining the Member. I have no doubt that this recommendation will be a matter of considerable interest to the House. Some Members will fear that it could justify invasion into their private lives. And, they may fear that it could drag the Commissioner and the House into acting as some sort of moral arbiter. We shall see.[23]

29. Meanwhile, I have just published a consultation paper on the more detailed Guide to the Rules relating to the registration and declaration of Members' financial interests and to lobbying. My aim is to make the Guide a clearer and more straightforward document. More controversially I am consulting on the possibility of tightening the rules on lobbying in relation to both present and past Members.

30. So, there is our first pillar which is there to uphold standards in the House of Commons. Clarity on what the standards are. A clear but principles-based Code of Conduct. Clear and accessible rules.

31. The second pillar is openness. During the expenses scandal, the House of Commons Commission—which is a group of senior Members of Parliament chaired by the Speaker of the House—rewrote the rules on Members' allowances and expenses. This was before the responsibility was given to an independent authority. The Commission drafted a number of questions which they suggested all Members should ask of themselves before making an expenses claim. One of the questions the Member was to ask him or herself was this: "How comfortable do I feel with the knowledge that my claim will be available to the public under Freedom of Information?"

32. Put more colloquially, how would you feel about reading of your claim in the Sunday press?

33. It has been argued, not least by a previous contributor to this seminar series, Rt Hon David Cameron MP, that transparency is the best disinfectant. I agree. Although I would suggest it is best to apply the disinfectant before rather than after the event. Properly applied, transparency and openness help prevent scandals and misbehaviour, before either has even started. But I know as well as anyone the downside. Openness provides a ready quarry for critics, apparently eager to think the worst of our parliamentarians. It is difficult objectively and dispassionately to explain a decision in response to a public frenzy. The internet, Twitter and such like has made the building of these campaigns all the more easy. And everyone has a right to a private life, even a Member of Parliament.

34. But my view is that we all live now in a much more open society. Facebook and Twitter are a reflection of that - many people are prepared and apparently keen to be much more open about their own activities. And so we need to recognise people's expectations now of much greater openness too from their elected representatives. It is better to build a constructive response to those expectations than to try to mount an ultimately doomed rear-guard action. It is commonplace that the House of Commons got this wrong on expenses. But elsewhere, I believe the House should be given credit for supporting a high degree of transparency, not least in requiring Members to identify their financial interests. Again, this is not a recent development. Members were first required to register their financial interests as far back as 1974 - and long before that they were expected to declare them orally in debate.

35. Now, every fortnight when Parliament is sitting, and a little less frequently when the House is in recess, my office publishes an up to date Register of Members' Financial Interests. It is broken down into 12 registration categories. I won't go through all the categories, but they cover Members' outside employment; the donations or sponsorship they receive in cash or in kind; any gifts or hospitality they receive from here or from overseas; any land or properties other than their own homes which they hold or let out; significant shareholdings; overseas visits paid for or supported by others; and any preferential loans or credit agreements which they may have. They must also register any family members whom they employ and pay for through parliamentary expenses.

36. In addition, Members are required to declare any relevant financial interest when initiating or taking part in proceedings of the House of Commons and in their dealings with others, including Ministers and officials. The test for registration and declaration is the same. It is not whether the Member in receipt of the benefit thinks it will influence him or her. Rather, it is whether someone else might reasonably think it influences a Member's actions, speeches or votes. In other words, it is the perception that counts.

37. The result is that people following debates will know when a Member has a financial interest in something they are debating. They can also check online the financial interests of all Members. And in my experience, the press as well as constituents regularly do so.

38. Of course, the results of these registrations and declarations do impinge on the Member's privacy and, in some respects, that of their family. But I agree with those who argue that openness is a strong protection, as well as a strong disinfectant. Usually it is a protection for the public, and that is clearly a priority. But it is also a protection for the Member. It is hard to accuse a Member of some shady financial dealing when it is published for all to see in the Members' Register. It may also be some help in a Member deciding whether to accept some financial gift or benefit to know that it will need to go in the Register and be open to public inspection.

39. An area of perhaps lesser transparency until recently was the conduct of my complaint inquiries. In 2003, the House of Commons agreed that the Commissioner should publish an annual report. And that Report contained statistics about the Commissioner's work and summarised the cases which the Commissioner had submitted to the House of Commons Committee on Standards and Privileges, and they to the House. But it was impossible to know on a more frequent basis what was happening to the Commissioner's case load; and it was impossible to know how the Commissioner resolved cases which did not come to the Committee, for example because he had dismissed them. The Commissioner's work became a matter for haphazard speculation, with confidence-sapping suggestions of leaks and off the record briefings.

40. I judged that more transparency was needed about my work if it was to keep public confidence at a time, including during the expenses crisis, when that confidence was, to put it mildly, in very short supply.

41. I was glad, therefore, that the House of Commons agreed in December 2010 to a much more open policy in respect of my complaints work. Now I put on my webpages each month the statistics in relation to the complaints I receive and resolve, and I identify the name of the Member in respect of any cases I am inquiring into. Where I resolve an inquiry without it going to the Committee, then my resolution statement, in the form of a letter, and the evidence on which it is based, are published on my web pages. My reports to the Committee with all the relevant evidence are also published. People can see the judgements I form, the evidence on which I base those judgements, and can come to their own conclusions.

42. My experience has been that this greater openness has led to less damaging speculation about complaints against Members and about my processes and decisions. Secrecy breeds suspicion and my processes are now a matter of public record. Any criticisms now should at least be well-informed. Which brings me to the third pillar, accountability.

43. In my view, proper accountability is a necessary and essential part of the structure which supports the House's standards system. Put simply, you can have a set of rules; you can have the disclosure of sufficient information to know if those rules are being broken; but, without a means by which Members can be held to account for abiding by those Rules, the system would be fatally flawed. Flawed because there would be no means of redress. A Code without consequences is in my view only halfway there.

44. I think the Committee on Standards in Public Life in 1995 well recognised that. So its report which established the seven principles of conduct in public life, and which proposed a Code of Conduct for Members of Parliament, also recommended the appointment of a Parliamentary Commissioner for Standards.

45. The first Commissioner was appointed in November 1995. I am now the fourth such Commissioner. The terms and conditions for the Commissioner have developed over those years, principally to ensure the independence of my post, which I hold very dear. Indeed, I see that this seminar series is called "Lessons in Government". Well, the first lesson I would hope you take away from this afternoon is that the Parliamentary Commissioner for Standards has nothing to do with the Government. The Government has no say in my appointment, my terms and conditions, or my work.

46. The position is that the Commissioner is appointed by the House of Commons, now for a single term contract of 5 years. It is not renewable. That means, of course, that no one should have any suspicion that the Commissioner's decisions and actions are in any way influenced by his or her hope of a further term. Because it cannot happen.

47. I was appointed in January 2008. So my 5 year period of office comes to an end at the end of this year. Nothing - or almost nothing - I say or do will affect that either way.

48. I say "almost nothing" because, as well as a fixed term contract, I am appointed on a Motion of the whole House of Commons. I can only be sacked by a Motion debated and agreed on the floor of the House where it can be shown that I am either unfit or unable to do the job.

49. So while I am an official of the House, I do not report up the management chain. My work is overseen by the Committee on Standards and Privileges. But they have no say in the decisions I make about complaints, including decisions about whether or not to institute an inquiry, how that inquiry should be conducted, or the conclusions which I reach. Nor can the Committee amend, delete or redact, the conclusions which I submit to them. The Committee forms its own view, but my view must be published at the same time and in full.

50. And unlike other Commissions, I am a sole trader. I do not have a body of Commissioners advising me. I do not have investigative teams conducting their own investigations which I supervise. I have one assistant to support me on complaints work. Most of the work of the rest of my office is on registration matters, for Members, their staff, for lobby journalists and All-Party Groups. The full complement of my office is currently the equivalent of a little over 5 full-time staff.

51. So the Commissioner has considerable independence in the way he or she carries out the work. And, in respect of complaints, it is very much a personal commission.

52. So how are Members held to account? My role in this respect is principally that of a complaints investigator. I am not an inspector. I am not an auditor. I am a complaints investigator. The trigger for most of my inquiries therefore is a complaint either from a Member of Parliament or from a member of the public. But since December 2010 I have also been able to initiate an inquiry, on my own account without having received a formal complaint, where I consider that sufficient evidence has come to my attention to justify an investigation. This new provision was principally to enable me to receive referrals from the new statutory expenses body, the Independent Parliamentary Standards Authority (IPSA). While that authority deals with alleged breaches of its expenses rules, it can subsequently refer serious matters to me to consider whether to initiate a disciplinary inquiry. I would then report my conclusions, not to IPSA, but to the Standards and Privileges Committee of the House.

53. And finally, Members can refer themselves to me, in which case, if I think that exceptionally an investigation is justified, I need to seek the agreement of the Committee on Standards and Privileges. Before 2008, a self-referral had only been made and accepted in one case. At the height of the expenses crisis - in 2009-10 - I accepted 12 self-referrals. They were exceptional times. In contrast, in this Parliament, I have accepted only two.

54. When I receive an allegation, I have two questions to answer. First, does this matter come within my remit? If it falls outside the Code, it falls outside my remit. If it relates to the Code of Conduct for Ministers or to Members of the House of Lords, it is not for me. If it relates to the way a Member has handled a particular case, including constituency cases, then the House has decided that this is for the electorate to judge and not for me. Equally, if it is about a Member's views or opinions, however expressed, again that is for the electorate.

55. But, if the matter does come within my remit, then the second question I must answer is whether the allegation has come with sufficient evidence to justify my instigating an inquiry. And that inquiry is into whether the Code of Conduct and its associated rules have been breached. So I do not go after seeing if I can substantiate some unsupported allegation, however colourful, however eye-catching. I do not trawl through a Member's business in the hope of finding something untoward. I read the evidence. And then I decide whether or not to start an inquiry. And that is a decision which I alone take.

56. The conduct of any inquiry again is entirely a matter for me. I always identify to the Member the allegation which is against them as briefly and clearly as I can; I identify the rules which it is alleged they have breached; and I look to the Member to provide me with the information I need to resolve the issue. It is an inquisitorial and not an adversarial process. The Member is required and expected to cooperate as I try to establish what the factual position is and then whether, in the light of those facts, the conduct complained of was or was not within the rules of the House. Members may seek legal advice, but I always ask to hear direct from Members themselves. I do not conduct inquiries through third parties. I will follow up with other witnesses where relevant, and seek the views of officials in the House of Commons. On occasions, I will conduct interviews with the Member or with other witnesses. I then identify all the evidence I have received and provide a statement of the facts which I seek to agree with the Member concerned. I then come to my own conclusion on whether, on the basis of those facts, the rules have been breached, and, if so, how serious I consider that breach to have been.

57. At any stage in my inquiry, I can come to the conclusion that the evidence is not sufficient to sustain the allegation. If so, at that point I will bring the matter to an end by telling any complainant that I do not uphold their complaint. The matter is then closed. It is a decision for me. I do not need to get separate authorisation from the Committee.

58. In cases where there has been a breach, but it is at the less serious end of the spectrum, I can resolve the case myself with the agreement of the Member. In such cases, I do not submit a formal memorandum to the Committee. Usually the matter can be rectified by the Member apologising and taking some appropriate action - for example correcting their entry in the Register, or apologising for a non-declaration, or paying back the cost of facilities they should not have used.

59. Where I submit a memorandum to the Committee, usually on more serious matters or where there is a wider point of interpretation or policy, it is for the Committee to come to its own conclusions and to decide if necessary on any sanctions it wants to recommend to the House. I have no say in that decision. I make no recommendation or indication to the Committee of any possible sanction. That is solely a matter for the Committee and the House.

60. Let me give you some idea of volume. At the height of the expenses scandal, in 2009-10, I received over 300 formal complaints and I accepted 72 for inquiry. Last year the number of formal complaints I received had dropped to 115, and I accepted 12 for inquiry. In that year I concluded 33 inquiries—the majority from the previous year. I upheld 24 of the complaints; I did not uphold 7; and the other 2 went to court.

61. So, in common with other complaint investigators, I receive many more complaints than I conduct inquiries. Most complaints fall outside my remit because they relate to the Member's handling of a constituency matter. But in considering whether I should initiate an inquiry on a matter that is within my remit, I recognise how important that decision is for the Member concerned. Members are very dependent on their reputation, not least for integrity and financial probity. They are under constant surveillance by their political opponents. Even the fact that I am inquiring into a Member's conduct can adversely affect their reputation. Under those circumstances, I believe it is right that I should only initiate inquiries when the evidence justifies it. And I am certainly very conscious in conducting my inquiries and in drawing my conclusions that not only the outcome but the words with which I choose to express that outcome can have a very serious effect on a Member's reputation, and future political career.

62. So I attach some importance to the fourth pillar which sustains our standards structure in the House of Commons. That is support for Members. Such support is an integral part of the work of my office. It comes in the form of the confidential advice my office gives to Members about the application of the Code and questions of propriety. Whenever I give a presentation to Members about my role, I always emphasise that I would much prefer to spend time advising them on how to keep the rules than on investigating allegations that they have not done so. If the stable door needs to be closed, then it is best done when the horse is still inside.

63. So I, and my colleague the Registrar of Members' Financial Interests, are always available to help Members on the interpretation of the rules, their obligations under the rules, and any wider questions of propriety. I recognise that there is a risk that I may be thought to be conflicted if I advise a Member and then they are subject to a complaint. But that risk seems to me preferable to refusing to advise a Member and then investigating them for a breach which could easily have been avoided.

64. And I would not wish to over-emphasise the risk of a conflict in my functions. After all, I advise Members. I don't authorise them. I don't instruct them. I think it very important that Members should be responsible for their own decisions in abiding by the Code. I can discuss the interpretation of the rules. I can identify precedents. I can talk through the issue with them. But ultimately, no Code of Conduct will work if it is imposed on those who are required to keep to it. This is true of any code. It is particularly true of the Code of Conduct for Members of Parliament since Parliament is sovereign and I would be deeply against any suggestion that a Commissioner should usurp, or should be thought to be usurping, the sovereignty of Parliament. Members must decide for themselves. They should be able to ask for advice. Then they should expect their decisions to be public and to be held to account for them.

65. I also give more general support to the House on standards and propriety. At present, the Government has brought out proposals for the recall of Members of Parliament. Late last month, at the end of January, I gave evidence to the Constitutional and Political Reform Committee in the House which is considering the Government's proposals. The role of the Commissioner in such matters is not to peddle their own views on Government policy, but to set out how Government policy might affect the work of the Commissioner and the operation of standards in the House.

66. I am also advising a joint working group of Members from the House of Commons and House of Lords on the options for closer regulation of All-Party Groups. There are some 500 such groups in Parliament at present, taking an interest in other countries and in a wide range of policy issues. My office registers these groups. There is a potential concern that lobbyists and others may be thought to have undue influence through the support they give them.

67. So the structure of standards in the House of Commons is upheld by these four pillars: clarity in a Code of Conduct, openness in the publication of interests and complaints, accountability through the investigation of allegations against Members, and support in giving Members and House Committees advice on the rules and wider questions of propriety.

68. This is, in my view, a robust structure, capable of serving the House of Commons, its Members and the public. It is an essential part of ensuring the effectiveness of Parliament in keeping corruption at bay and so in maintaining the strength and effectiveness of our parliamentary democracy on which our well-being depends. The Commissioner is there to provide an independent element in that structure. But ultimately it is for the House, its Members, and for those who elect its Members, to ensure that high standards are expected of our elected representatives and that those standards are consistently met.


John Lyon CB                9 February 2012

Parliamentary Commissioner for Standards



23   The new Code was considered on a motion of the House on 12 March 2012 (see paragraphs 1.5 to 1.13). Back


 
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