The Standards Systems in the House of Commons - Committee on Standards Contents


3  Regulation of MPs

35. Among the causes of disquiet surrounding the publication of the Committee's Tenth Report of session 2013-14 in April 2014[40] were the perceptions that MPs were judging the conduct of other MPs, and that the system for regulating MPs conduct was weak in comparison with the regulatory systems for professions, or for other legislatures. In consequence of this, and of the Report of the lay members on their first year experiences,[41] which pre-dated the Tenth Report and the reaction to it, a large part of our inquiry was spent in considering the way in which professions were regulated, and considering domestic and international comparisons, to enable us to assess the current regime, and make recommendations for improvement.

What is an MP?

36. If the public are to form a reliable opinion of the conduct of their MPs, they must know what is currently expected of those MPs, in terms of performance as well as conduct. It is clear that many people do not. In the following paragraphs we attempt to clarify the nature of the position and how MPs may differ from professionals such as doctors and lawyers.

37. If they are professionals at all, MPs differ from other professionals in a number of ways. Professionals are admitted into professions following specialised and organised study and assessment and can expect to hold their posts provided they remain competent and the business can support them. Their duties will be reasonably clear, and their competence can be assessed. They may well have an employer.

38. Professions have Codes of Conduct which usually have a dual base of professional and ethical standards which inform both more general standards and specific rules. They usually include 'professional competence', which includes the obligation to maintain professional knowledge at an appropriate level. Profession-specific rules are often included, for instance the General Dental Council's rules regarding obtaining patient consent and managing pain and fear.[42] Professional regulation also extends to ethical matters which are not directly related to professional competence, but which will affect public confidence in the individual or the profession.

39. MPs have to be highly competent communicators, able to understand policy and deal with a diverse workload. Nonetheless they are elected not on the basis of specific skills, centrally determined and tested, but of party and electorate's will. These may value attributes which would make an HR department blanch. That is the prerogative of the electorate. MPs may be removed because their party decides not to reselect them, or because the electorate rejects them - either because of their individual conduct or because of the declining fortune of their party.

40. MPs are elected for a single parliament. They have no contract of employment and no formal job description. While electors may try to influence what MPs do or say in that capacity they must not offer threats or inducements to achieve their aims. This freedom from a job description and from the instructions of an employer or client seems at first glance enviable. But it is a mixed blessing. Where there is no clear description of the duties on an MP their constituents are likely to fill the vacuum with their own definitions and these can be exacting or irrational or unrealistic. But every elector has the right to judge the MP against both their own standards and their own, more or less articulated, job description.

41. While MPs have freedom to perform the role in the way in which they consider best, there are limits to that freedom. Apart from the protections of parliamentary privilege, the House is not a haven from either criminal or civil law.

42. It is clear from the above that there can be no simple equivalence between membership of the House and membership of a professional body, but even if being an MP is not in itself a profession there are enough similarities with a profession for it to be appropriate for us to measure the House's system against that used in a variety of professions. Further, many MPs do come to Parliament from the professions,[43] and expect a formal requirement to maintain certain standards.

43. If MPs are to be regulated as if they were members of a profession, there needs to be some common understanding of their role. Although, as we have described, MPs do not have a formal job description there is a broad consensus about the range of functions they undertake. As the Modernisation Committee put it:

    for all the different approaches to being a Member it is possible to discern a number of commonly recognised tasks, including:

    ·  supporting their party in votes in Parliament (furnishing and maintaining the Government and Opposition);

    ·  representing and furthering the interests of their constituency;

    ·  representing individual constituents and taking up their problems and grievances;

    ·  scrutinising and holding the Government to account and monitoring, stimulating and challenging the Executive;

    ·  initiating, reviewing and amending legislation; and

    ·  contributing to the development of policy whether in the Chamber, Committees or party structures and promoting public understanding of party policies [...][44]

44. One of the elements of the work of an MP which is frequently misunderstood is constituency casework. The evidence from the Commissioner indicates that many of the out of remit complaints relate to this.[45] It would appear to be a common misunderstanding that an MP is obliged to take up any constituency case or support any view put forward. Rather, he or she is someone who will have an interest in constituents' views on matters of local and national policy, whether or not he or she agrees with the point raised, and someone who might, as a last resort, help with an individual constituent's problems.

45. Constituency work has become increasingly important and there are few, if any MPs who do not value it. In addition to directly helping constituents, it is reasonable to assert that it is a way of assessing whether government policy is addressing the problems they face. It can also form a crude performance measure for institutions: if a local or national institution generates a great deal of casework, it is possible, or even probable, that it has systemic problems. Nonetheless while casework can inform MPs in their performance of the other functions, it should not crowd out those functions.

46. It is also worth noting that there are many tasks which it is unreasonable for the public to expect MPs to undertake, at least at first instance, since many other bodies exist precisely for such purposes. As the House of Commons website makes clear there are cases when others should be approached first:

    When you should contact someone else first

    Some issues are not the direct responsibility of Parliament or government. In these instances, you should first contact either your local council or your nearest Citizens Advice Bureau before considering contacting your MP.

    These are issues such as:

    ·  Council tax.

    ·  Private problems with neighbours, landlords, employers, family; or companies who've sold you faulty goods.

    ·  Decisions made by the courts.

    ·  Issues that are the responsibility of your local council, ie, dustbins or street repairs.

    When you should contact the government

    If, for example, you have a question about government policies on the National Health Service, this should be directed to the government department that deals with that subject - in this case, the Department for Health.

    Contacting a government minister

    If you wish to contact a specific government minister in connection to their ministerial responsibilities, please use the contact facilities on their departmental website.[46]

47. Indeed, we consider that the Parliamentary website is unhelpful in implying the MP should be immediately approached for the issues below, without making it clear that in many cases there are established avenues for help which should be the first port of call, such as the Local Government Ombudsman for complaints about services provided by local authorities. .

    When you should contact your local MP

    MPs are more able to help you with issues that Parliament or government are responsible for, such as:

    ·  Tax (but not council tax as this is set and paid to your local authority).

    ·  Hospitals and the National Health Service (not local social services).

    ·  Benefits, pensions, national insurance.

    ·  Immigration.

    ·  School closures and grants (not day-to-day school problems like governors or the local education authority).[47]

We note that the website does not mention the fact that some issues fall properly to members of the devolved legislatures rather than MPs.

48. We recommend that the parliamentary website be amended to give a clearer picture of the functions of an MP, one which is not so focused on the constituency role. The danger is that by raising expectations which cannot in fact be met, the House service is inadvertently increasing the risk of public disillusion. While it is sensible for the public to be given guidance on how an MP might be contacted by constituents, there should be more information about the circumstances in which this would be appropriate, and on the limits on MPs' ability to help. We expect the Committee on Standards to be consulted on this revision.

49. While we do not believe that it would be appropriate for the position of an MP to be subject to a formal job description, and there is no written contract in the context of which such a description can be included, it would be beneficial if wider public understanding of the role could be achieved. We recommend that the various functions which an MP performs should appear on the website, and preface the Code of Conduct, accompanied by an explanation that it is for the individual MP to decide what priority to give to each and how to perform them. Such a description should also appear prominently on the House of Commons website and consideration should also be given to some text covering this ground appearing in the voting booth at election time. The following wording might be used in the Code.
THE ROLE OF AN MP

MPs have a multi-faceted role. It includes, but may not be limited to:

·  supporting their party in votes in Parliament (furnishing and maintaining the Government and Opposition);

·  representing and furthering the interests of their constituency;

·  representing individual constituents and taking up their problems and grievances;

·  scrutinising and holding the Government to account and monitoring, stimulating and challenging the Executive;

·  initiating, reviewing and amending legislation; and

·  contributing to the development of policy whether in the Chamber, Committees or party structures and promoting public understanding of party policies.

It is for each MP to decide how best to balance these tasks. Unless their actions damage the reputation of the House as a whole or of MPs in general, MPs have complete discretion in

a)  policy matters;

b)  expressing views or opinions;

c)  the handling of or decision about a case (whether or not anyone involved is a constituent of the Member);

MPs represent individual constituents with intractable problems in a variety of ways, from making private enquiries on their behalf, to raising matters publicly in the House of Commons, but there are many matters where other bodies will be better able to help, especially in the first instance. This is particularly so when matters are not within the responsibility of Government or Parliament, such as:

·  private problems with neighbours, landlords, employers, family; or companies who have sold you faulty goods.

·  decisions made by the courts.

·  issues that are the responsibility of a local council, such as council tax, dustbins or street repairs.

·  questions about government policies should be directed to the government department that deals with that subject.

50. Where the Commissioner receives a complaint which would appear to be better directed to another authority she will, as with complaints of criminal conduct, advise the complainant as to who best to approach.[48] We are grateful for the effort she and her staff put into this aspect of her work, which is not within her remit (a matter which may in itself merit attention). We deplore the fact that there seems to be no comprehensive and easily comprehensible guide to complaints on the government website. We consider it would be helpful if material on Government and House websites was reviewed so it provided as clear a signpost as possible for those wishing to complain to the appropriate authorities about services and other matters. The aim should be to direct those with problems to the organisation which is best able to help them.

Rules vs principles in regulation

51. Once there is understanding of the role of an MP, the question arises as to how the House should set out the rules it makes. Codes of Conduct and professional rules usually consist of two elements: principles, which give an overview of acceptable behaviour, and rules, which detail specific actions or modes of behaviour. One question in designing a standards system is whether it should be a principles-based system (which relies to a great extent on integrity to ensure the appropriate application of these principles to ethical difficulties) or a rules-based system (in which appropriate behaviour is spelled out in specific detail).

52. In its report Standards Matter: A review of best practice in promoting good behaviour in public life (January 2013), which looked at standards matters across the public sector, the Committee on Standards in Public Life took the view that a set of broad-based principles—which "should be aspirational, rooted in the core purposes and values of an organisation or profession and easy to communicate and understand"—were the starting point of an effective standards system.[49]

53. However, the Committee on Standards in Public Life emphasised that, because of the broad nature of the concepts expressed in such principles, differences of interpretation can reasonably arise. Therefore clear rules—rather than broad principles—were key to ensuring appropriate standards of conduct, and a Code of Conduct complements and reinforces the principles, by elaborating on detail and applying them to the specific institutional context in hand. Codes "need to be sufficiently detailed to provide helpful guidance. But if they become too elaborate people can lose sight of the principles on which they are based, and fail to exercise their judgement or take responsibility for their decisions."[50]

54. Our evidence indicates that, whereas the detailed provisions of the Code of Conduct may be difficult to memorise, ethical principles are well-understood. Angela Eagle told the Committee: "It is not said often enough, but I think the vast majority of MPs know and abide by the rules and understand them. [...] not least because of the induction processes that have increasingly come to feature at the beginning of Parliaments. [...]. We only hear about the ones that don't. Sometimes I think it is important for us to remember that the vast majority of Members of Parliament do."[51] The then Leader of the House, Andrew Lansley, agreed: "the overwhelming majority of individual MPs display those [Nolan] principles in the way in which they go about their work".[52]

55. From the professions, the Solicitors' Regulation Authority told the Committee that they have recently moved from regulation of solicitors' conduct through the application of detailed rules to focusing instead on core principles. Charles Plant said:

    In 2011 we introduced a new code of conduct. The previous approach, which had been very rules-based, so we had a code of conduct that was 600 or 700 pages long, has now been substantially reduced. It starts with 10 principles. … These are the core 10 principles. We also have the statutory objectives that are contained in the 2007 Legal Services Act. The combination of the two quite succinctly says what we expect of solicitors in the way they perform.[53]

The 10 principles pervade the more detailed solicitors' Code, and are the starting point for a solicitor who needs to think through any ethical dilemma.[54]

56. However, Gordon Hockey, from the RCVS, pointed out that the desire for brief principles and the wish for detailed guidance are not always separate: "Everybody has been on a journey towards principle-based regulation, but, in my experience, everybody also wants detailed rules to know that they are okay and out of trouble."[55]

57. In the USA, the Code of Ethics for Government Service, which includes eight key principles, applies to members of both Houses of Congress. In the House of Representatives, the principal document is an 18-point Code of Official Conduct, which sets out some overarching principles. It also issues a 456-page ethics manual. The Senate's Official Code of Conduct is 63 pages long, and is supplemented by a 542-page ethics manual. The existence of principles does not extinguish a parallel reliance on detailed rules.

58. Having a system based around a few principles, rather than a series of detailed rules, is superficially attractive. Principles can easily be memorised, and, so long as the question of the application of principles is adequately addressed, the need to think through how to apply principles to specific situations can promote ethical behaviour. Principles require a certain base level of shared ethical culture if they are to have impact, and it may be more difficult to bring complaints for a breach of a principle than of a rule. They require, moreover, guidance on methods which can be applied to resolve an apparent conflict between two principles.[56] Detailed rules provide certainty about what is, and is not allowed; but, in doing so, they risk promoting technical compliance over ethical behaviours.

59. We accept the evidence that principles are helpful in promoting appropriate standards, but they need to be underpinned by supporting guidance in the form of training and detailed rules.

Regulation vs self-regulation

STATUS QUO: THE PROBLEM

60. The accusation that MPs 'mark their own homework' is frequently made and undermines public confidence. As Lord Bew told the Committee: "It is an awful cliché… It does not represent in certain important respects the truth of the matter, but the fact remains that that is the public perception."[57] It is worth remembering that in the mid-1990s the proposals of the first Nolan Report were regarded by MPs as a substantial attack on their then wholly-internal system of self-regulation, and yet the system adopted by the House, of which the Commissioner was a key part, was stricter than the proposals which had been recommended by the Nolan Committee.[58]

61. The truth differs from the cliché because, for the past two decades, the system of MPs' accountability has involved a strong independent element, in the person of the Parliamentary Commissioner for Standards, as Sir Philip Mawer, a former Commissioner, reminded the Committee in his written evidence.[59] MPs on the Committee on Standards adjudicate on standards matters; but the Commissioner investigates and the Commissioner reports. Since it was set up in 2013 following the split of the Standards and Privileges Committee into two separate bodies, the Committee on Standards has included independent lay members.

62. James Landale argued that the creation of IPSA had created a precedent which showed that external regulation is possible.[60] We recognise that IPSA has addressed many of the causes of complaint and so reduced the workload of the Committee. However, Andrew Lansley took the view—with which we agree—that IPSA had "a very specific role" and was not therefore, of itself, the thin end of the wedge for more to be regulated externally.[61] Indeed, James Landale's overall view of self-regulation versus external regulation was that "On the question of self­regulation, there will be many people in my profession [journalism] who have very strong views either way on this, but whatever they think about it, ultimately it will come down to the decision: has that person been given a fair hearing, and if they have done anything wrong, have they had the right punishment?"[62] The press were focused on outcome over process and, of course, are generally fiercely protective of what they see as their own right to self-regulation.

63. On the role of the police and the Crown Prosecution Service (CPS), Peter Riddell noted that:

    An interesting point is that if you go back 20 years to when the Committee on Standards in Public Life was set up, it would be terribly rare for any criminal action to occur against a Member. … In many respects, because the CPS has been more vigorous than it would conceivably have been 20 years ago, it has addressed some concerns but not all.[63]

64. Richard Thomas of the Committee on Standards in Public Life, who has been engaged with questions of optimal regulatory regimes for three decades, set out clearly the task that was before us:

    The challenge for this inquiry is to ask what the right balance is, so as to respect the traditions and position of elected democratic representatives, and the party machine, and so on. It is about how to get that balance right in this context.[64]

MODELS OF REGULATION IN OTHER JURISDICTIONS

65. Greg Power has identified three main models for the regulation of Parliamentary standards:

    The first is entirely external regulation, as used in Taiwan. The second is to rely solely on regulation within the legislature itself, as practised in the USA. The third is to combine an external investigative commissioner with a parliamentary committee to enforce sanctions, which is the system adopted in the UK and Ireland.[65]

The first model not only criminalises any breach in standards, it also takes away from parliamentarians any sense of ownership of their own ethics and standards and thus does not reinforce good behaviour. The second model, in Greg Power's assessment, "has come in for considerable criticism, as it turns legislators into investigators, judges and juries, rather than maintaining them as a body which ratifies a judgement reached by an impartial adjudicator."[66] The third model, which is the one that the House of Commons has operated in the current Parliament, combines elements of both of the other models: independent investigation, with adjudication and sanction resting predominantly with MPs.

66. "Self-regulation", Melanie Sully told the Committee, "is common to a lot of parliaments."[67] It is also, she advised us, "something which most parliaments would like—that is the priority, in effect, because the parliamentary arena is jealously safeguarded. External can help, but it has to be dealt with very well."[68] However, the general trend in parliamentary regulation, she noted, is towards external involvement in regulation,[69] and outside legal experts can now be involved with parliamentary commissions of inquiry in Austria, although "There was caution about how that would work and what kind of influence they would have".[70]

67. During our inquiry, we have looked at a number of other parliamentary standards systems outside the UK.[71] The Australian House of Representatives has a Committee of Privileges and MPs' Interests, which is composed solely of MPs and on which the government has a majority. The New Zealand Parliament has a somewhat similar system to that of the Australian House of Representatives, albeit with the external input from the Office of the Auditor-General (OAG), who is an Officer of Parliament: only an MP may request an inquiry by the Auditor-General. The Canadian House of Commons has a system which bears some resemblance to that of the UK: the Conflict of Interest and Ethics Commissioner, an Officer of the House, has a pro-active role in providing confidential advice to elected MPs, as well as investigating possible contraventions of the rules.

68. The self-regulation system of the U.S. House of Representatives has two limbs: the Office of Congressional Ethics (OCE) and the House Committee on Ethics. The OCE, which was established in 2008 in response to criticism of the House's ability to investigate allegations into the conduct of its own members, describes itself as "an independent, non-partisan entity charged with reviewing allegations of misconduct against elected members, officers, and staff of the United States House of Representatives and, when appropriate, referring matters to the House Committee on Ethics."[72] Though the OCE investigates, it does not adjudicate: inquiries into alleged breaches of the Code are conducted by the House Committee on Ethics, a non-partisan committee of ten members (five Democrat, five Republican), which also provides advice and training to Representatives .The U.S. House system has, since 2008, therefore borne resemblance to the House of Commons' system, although in the U.S. the OCE's remit, and not that of the Representatives themselves, includes setting the rules in their Code. The U.S. Senate's Code is administered and enforced by the Select Committee on Ethics, a non-partisan committee of six members (three Democrat, three Republican). The remit of the Committee on Ethics is to receive and investigate complaints or allegations of improper conduct in their duties made against Senators, or officers or employees of the Senate. It can, also, provide advice on the interpretation of the Senate rules to senators, officers, and employees. There is no lay or external input into the U.S. Senate's system, and no lay or external involvement into the adjudication of complaints against Members of the House of Representatives or into the determination of sanctions on Representatives who have committed misconduct.

69. We have also looked at standards in the devolved legislatures within the UK. Each of the devolved legislatures has its own Code of Conduct and regulatory system, modelled on that of Westminster, although some Commissioners are statute-based and may have a wider remit than members of the legislature. Devolved assemblies do not have the power to expel members. Regular meetings between the officials (including from the Dáil Éireann) enable best practice to be shared. A Code of Conduct for elected members of local authorities was introduced from 1975, and Parliament gave this a statutory footing in 1990. The Local Government Act 2000 set out a new ethical framework for members of local authorities in England and Wales, and from 2008 a somewhat slow and cumbersome system was turned into a swifter one in which the investigation and adjudication of complaints operated locally, with substantive involvement of lay members. Since 2012, the Localism Act 2011 has abolished this regime in England: local authorities are now required to devise their own Code based on the seven principles of public life; the role of lay members of standards committees has been replaced with a requirement to consult an independent person; the power to suspend elected members for breaches has been removed.[73]

70. We took evidence from current and former MPs on the question of self-regulation versus external regulation, and received a range of views. Richard Caborn argued the case for self-regulation; but argued that a select committee was not a suitable structure for a disciplinary function.[74] Sir Bob Russell MP was relaxed on the question of self-regulation versus external regulation, preferring to focus on the timeliness of the outcome of investigations.[75] Mark Field MP argued strongly in his written evidence that "the restoration of public confidence in politics and trust for parliament/parliamentarians has demanded independent regulation."[76] Likewise, Laura Sandys MP supported the regulation of standards being taken out of the hands of MPs by an "independent non-parliamentary standards committee", to increase clarity.[77] Bill Wiggin MP wished that MPs were treated like any other job-holder and that wrong-doing went to the courts and that proceedings were judicially reviewable.[78] The Committee understands that most employees' disciplinary matters are resolved, within the workplace. Only if the matter cannot be settled in the workplace is the matter referred to a legally-constituted tribunal.

71. Regulation of MPs' conduct could be left to existing external bodies without raising difficult questions about parliamentary privilege. As we have described, MPs are generally subject to the law of the land, and external bodies (IPSA and the Electoral Commission) regulate MPs' expenses and compliance with electoral law. The standards which these external bodies enforce are those set out in law. Self-regulation would be limited to the Chair's regulation of conduct in the Chamber and Committees. The Commissioner and the Committee could be abolished. There would no longer be any implication that MPs were judging themselves. The corollary of this would be that if the House chose to approve a Code of Conduct which demanded higher standards than simple adherence to the law, there would be no mechanism to force MPs to comply. The alternative would be to set up a statutory body to police this. Such a body would be judicially reviewable. It would be unelected, and questions immediately arise about who should appoint it and who would dismiss it.

72. We have already alluded to the importance of MPs and Parliament having the freedom to speak and act, within the law, as they consider best. One key benefit of some form of self-regulation—rather than full external regulation—is the avoidance of the risk that the courts might come to claim jurisdiction over Parliamentary issues. Jack Straw argued strongly that the regulation of Parliamentary standards required continued MP involvement

    Where you are dealing with this very subtle area not of criminality or breach of financial regulations but of behaviour, the norms have to be established by MPs as a whole. If you do not accept that, you will end up in the courts. It is not a job that the courts want and they are not particularly equipped to deal with it."[79]

David Howarth, a former MP, took the view that

    If that power [to regulate] were to go outside the House in any way at all, I cannot see how you could resist having the courts come in to control by judicial review decisions that are of such importance in the lives of MPs and in terms of the constitutional system. It may well be that people are prepared to see the court system all over the House's procedures, but my experience as an MP tells me that that is not really what you want.[80]

73. Both the then Leader of the House, Andrew Lansley, and the Shadow Leader, Angela Eagle, emphasised the benefits of including in the regulation of MPs' conduct those who possess contextual knowledge of the House and its proceedings. Andrew Lansley told us that

    It is quite difficult, to be perfectly honest, to envisage what is essentially an independent body trying to interpret many of the other cases that come forward, because they tend to require quite intimate knowledge of how the House works, in order to understand what MPs have done and why they have done it, and the Standards Committee—by its nature, because of the involvement of MPs themselves—enables a proper understanding of the environment within which MPs have to work.[81]

Angela Eagle emphasised the need to work with, rather than against, the practices of the House:

    We do have our own ecosystem in the House. I would never make the assumption that just because we have always done it that way, it should always be done that way, but we have to be careful about the proliferation of bodies and arrangements that have a locus in this area… If you were to create another it would make our ecosystem even more interesting, but I am not sure that it would help clarity."[82]

Melanie Sully also advocated the retention of MP involvement in the regulation of parliamentary standards, telling us that keeping an element of self-regulation is "the best way of creating something aspirational".[83]

74. One criticism of the current system of quasi self-regulation is that the adjudication function and decisions on sanctions rest primarily with MPs. We heard powerful evidence that the final say on sanction resting with MPs was indeed appropriate. David Howarth and Andrew Lansley each expressed strong reservations about sanctions against MPs—especially the most severe sanctions—being taken out of the hands of MPs. David Howarth told us:

    The penalties of suspension and the ultimate penalty of expulsion are powers that it would be very dangerous to hand over to a body outside the House. The reason for that is political and constitutional. Do you want people outside the House—people who are not democratically accountable—to have the power to affect the majority in the House, and maybe even to affect who forms the Government?[84]

Similarly, Andrew Lansley told us:

    I cannot see how we can move to a situation where some independent body determines, for example, a penalty that would include excluding a Member from participation in the House—it is the House's responsibility to do that.[85]

A recent judgement of the European Court of Human Rights confirms this view.[86] We agree that there are strong constitutional reasons against pure external regulation of standards issues. This is particularly the case given that MPs have no immunity from the criminal law.

75. Rejecting pure external regulation does not mean rejecting all outside input into the system and a combination of external and internal regulation is common in the professions. Richard Thomas told us that:

    in the whole debate during the '80s and '90s with the medical and legal professions and the insurance and financial services community one saw a shift away from pure self-regulation to what we describe in this report as much more of a co-regulation approach, which is where the people being regulated are very much involved and actively engaged with the process, but a strong external element is present, sometimes mandated by law.[87]

76. The evidence from the professional bodies demonstrates that the expertise of professional insiders and that of independent (or lay) outsiders is complementary. Paul Philip, who has expert knowledge of the function of not only the SRA's regulatory procedures but also that of the GMC, told us:

    I honestly think that it is a genuine partnership between those who practise the profession and understand the nuances and the detail of it, and people who don't and can bring objectivity. At times they can bring a user's perspective, or in [the case of the GMC], a patient perspective, so they have come together. That has been my experience in the governance framework in these organisations. It has also been my experience in the disciplinary frameworks within the organisation that the sum of the parts is bigger than the constituent parts. They are better organisations for having genuine lay input and lay challenge. The Solicitors Disciplinary Tribunal, the Solicitors Regulation Authority or the GMC could not make the decisions—they could not perform—without the expertise of people who exercise those traits. You need that expertise.[88]

We agree: the optimal form of regulation comes through a genuine partnership between those who are regulated and those who can bring independent input from outside.

SQUARING THE CIRCLE: SELF-REGULATION WITH A STRONG EXTERNAL ELEMENT

77. The standards system, and the Code of Conduct, in the House of Commons are regulated by the Committee on Standards, which now includes independent lay members, in conjunction with the Parliamentary Commissioner for Standards, which is an independent role, although one whose holder is an Officer of the House of Commons. MPs are, therefore, subject to a system of co-regulation, which combines elements of self-regulation with strong pillars of external involvement.

78. A report for the OSCE Office for Democratic Institutions and Human Rights (ODIHR), which classified the House of Commons' system as one of "co-regulation", a hybrid between self-regulation and external control,[89] noted that the (then forthcoming) proposal to appoint lay members to the House of Commons Committee on Standards "would go some way to addressing concerns that self-regulation is prone to an inherent conflict of interest, as well as to complaints that Parliament is sometimes remote and out of touch with public expectations". [90] Greg Power told the Committee that on an international spectrum which ranges from quasi-judicial regulation to a wholly internal process, the current House of Commons arrangements were robust: "I think what we have here is a very good balance… I think what you have is a very strong model."[91]

79. Evidence put to us by the media and the professions emphasises that the question of whether something is self- or externally-regulated is of lesser importance than whether the process is seen as clear and the outcome seen as fair—therefore, whether the system can command the respect of those involved and the public at large. We have heard that independence and professional involvement complement each other and strengthens the standards system. We have heard that clearer explanations of process and outcome, along with clarity about the role and remit of the independent lay members of the Committee on Standards in adjudications, can help command the confidence of media and the public alike. As Richard Thomas told us at the beginning of our inquiry, "It is not self-regulation or something else; it is about what point you choose on that particular spectrum."[92]

80. We endorse the current system of "self-regulation with strong independent elements" as the correct one, but believe that the role and strength of influence of these independent elements need to be made clearer, and the process itself also needs to be explained better. We note that it is easy for those in a completely self-regulatory system to dismiss or ignore criticisms from those who not well informed about the process. The introduction of lay members of the Committee on Standards means that there are now non-MPs, who have limited terms and so are unlikely to be absorbed into the shared culture of the House of Commons, engaged with the standards regime, and their views command respect. While the regular review of the Code and Guide meant that the system was already under regular scrutiny, that scrutiny is now better sustained and better informed. However, this will be of no value if the House does not address the matters raised (see paragraph 199).


40   Committee on Standards, Tenth Report of Session 2013-14, Maria Miller, HC 1179 Back

41   http://www.parliament.uk/documents/commons-committees/Standards-Committee/Lay-Members-Report.pdf Back

42   General Dental Council, Standards for the Dental Team  Back

43   Of the 621 MPs from the three main parties in the 2010 Parliament, 252 (40.6%) had backgrounds in regulated professions or had senior positions used to taking responsibility for regulatory compliance, including 38 barristers, 48 solicitors, 9 from the medical professions, 115 company directors or executives, 18 from the civil service or local government, 24 schoolteachers.A further 90 (14.5%) had been in politics before entering Parliament.(Source: Byron Criddle, 'More Diverse, Yet More Uniform: MPs and Candidates', in Dennis Kavanagh & Philip Cowley, The British General Election of 2010 (Basingstoke, Palgrave Macmillan, 2010), 327. Back

44   Select Committee on Modernisation of the House of Commons, First Report of Session 2006-07, Revitalising the Chamber: the role of the back-bencher, HC337 Back

45   SSC0022 Back

46   http://www.parliament.uk/get-involved/contact-your-mp/when-to-contact-your-mp/ Back

47   ibid Back

48   SRS0023 Back

49   Cm 8519 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228884/8519.pdf. Back

50   Cm 8519, 7. Back

51   Q45 Back

52   Q46 Back

53   Q197 Back

54   The 10 Principles are obligations to: (1) uphold the rule of law and the proper administration of justice; (2) act with integrity; (3) not allow your independence to be compromised; (4) act in the best interests of each client; (5) provide a proper standard of service to your clients; (6) behave in a way that maintains the trust the public places in you and in the provision of legal services; (7) comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner; (8) run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles; (9) run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and (10 protect client money and assets.Source: http://www.sra.org.uk/solicitors/handbook/code/part1/content.page accessed December 2014. Back

55   Q198 Back

56   This was pointed out to the Committee in the written evidence from the Solicitors Regulation Authority. Back

57   Q2 Back

58   Dawn Oliver, 'Regulating the Conduct of MPs. The British Experience of Combating Corruption', Political Studies (1997), XLV, 539-558. Back

59   SSC0006 Back

60   Q98 Back

61   Q49 Back

62   Q98 Back

63   Q2 Back

64   Q7 Back

65   Greg Power, Handbook on Parliamentary Ethics and Conduct: A Guide for Parliamentarians (Global Organization of Parliamentarians Against Corruption and Westminster Foundation for Democracy, 2009), 23.Dr Power's study was conducted the year after the Office for Congressional Ethics was created to introduce an independent element into the reception and investigation of complaints against Members of the House of Representatives. Back

66   Greg Power, Handbook on Parliamentary Ethics and Conduct: A Guide for Parliamentarians (Global Organization of Parliamentarians Against Corruption and Westminster Foundation for Democracy, 2009), 23. Back

67   Q79 Back

68   Q79 Back

69   Q84 Back

70   Q79 Back

71   See Appendix 2 Back

72   http://oce.house.gov/about.html Back

73   On the reservations about these new sanctions expressed by the Committee on Standards in Public Life, see: Committee on Standards in Public Life, Annual Report 2012-13 (August 2013), 15. Back

74   Q163 Back

75   Q162 Back

76   SSC0009  Back

77   Q156 Back

78   Q163, Q166 Back

79   Q148 Back

80   Q145 Back

81   Q49 Back

82   Q66 Back

83   Q79 Back

84   Q145 Back

85   Q54 Back

86   Hoon v The United Kingdom (application no. 14832/11) Back

87   Q2 Back

88   Q220 Back

89   OSCE/ODIHR, Background Study: Professional and Ethical Standards for Parliamentarians (OSCE Office for Democratic Institutions and Human Rights (ODIHR), Warsaw, 2012), 63 Back

90   OSCE/ODIHR, Background Study: Professional and Ethical Standards for Parliamentarians (OSCE Office for Democratic Institutions and Human Rights (ODIHR), Warsaw, 2012), 67 Back

91   Q86 Back

92   Q2 Back


 
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