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 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,
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
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,
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,
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
for all the different approaches to being a Member
it is possible to discern a number of commonly recognised tasks,
· 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
· contributing to the development of
policy whether in the Chamber, Committees or party structures
and promoting public understanding of party policies [...]
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.
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
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:
· Private problems with neighbours,
landlords, employers, family; or companies who've sold you faulty
· 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.
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.
· School closures and grants (not day-to-day
school problems like governors or the local education authority).
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.
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
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 principleswhich "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.
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 rulesrather than broad
principleswere 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."
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."
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".
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.
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.
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."
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. Detailed
rules provide certainty about what is, and is not allowed; but,
in doing so, they risk promoting technical compliance over ethical
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
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
does not represent in certain important respects the truth of
the matter, but the fact remains that that is the public perception."
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.
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.
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. 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 viewwith which we agreethat IPSA had "a
very specific role" and was not therefore, of itself, the
thin end of the wedge for more to be regulated externally.
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?"
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.
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.
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.
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
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."
It is also, she advised us, "something which most parliaments
would likethat is the priority, in effect, because the
parliamentary arena is jealously safeguarded. External can help,
but it has to be dealt with very well."
However, the general trend in parliamentary regulation, she noted,
is towards external involvement in regulation,
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
67. During our inquiry, we have looked at a number
of other parliamentary standards systems outside the UK.
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."
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
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.
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.
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."
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.
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
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
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-regulationrather than full external regulationis
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
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."
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
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 Committeeby its nature, because of
the involvement of MPs themselvesenables a proper understanding
of the environment within which MPs have to work.
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."
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".
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 MPsespecially the most severe sanctionsbeing
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
Housepeople who are not democratically accountableto
have the power to affect the majority in the House, and maybe
even to affect who forms the Government?
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 Houseit
is the House's responsibility to do that.
A recent judgement of the European Court of Human
Rights confirms this view.
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.
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 decisionsthey could not performwithout
the expertise of people who exercise those traits. You need that
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
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,
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
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
think what you have is a very strong model."
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 fairtherefore,
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."
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
40 Committee on Standards, Tenth Report of Session
2013-14, Maria Miller, HC 1179 Back
General Dental Council, Standards for the Dental Team Back
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),
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
Cm 8519 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228884/8519.pdf. Back
Cm 8519, 7. Back
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:
accessed December 2014. Back
This was pointed out to the Committee in the written evidence
from the Solicitors Regulation Authority. Back
Dawn Oliver, 'Regulating the Conduct of MPs. The British Experience
of Combating Corruption', Political Studies (1997), XLV,
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
Greg Power, Handbook on Parliamentary Ethics and Conduct: A
Guide for Parliamentarians (Global Organization of Parliamentarians
Against Corruption and Westminster Foundation for Democracy, 2009),
See Appendix 2 Back
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
Q163, Q166 Back
Hoon v The United Kingdom (application no. 14832/11) Back
OSCE/ODIHR, Background Study: Professional and Ethical Standards
for Parliamentarians (OSCE Office for Democratic Institutions
and Human Rights (ODIHR), Warsaw, 2012), 63 Back
OSCE/ODIHR, Background Study: Professional and Ethical Standards
for Parliamentarians (OSCE Office for Democratic Institutions
and Human Rights (ODIHR), Warsaw, 2012), 67 Back