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


4  The Committee and the Commissioner

81. Although we consider that self-regulation with a strong independent element is the appropriate model for the House of Commons, we believe there are ways in which the system could be strengthened. In this chapter we consider the interlocking questions of the relationship between the Commissioner and the Committee, and the composition, size and working methods of the latter.

The Committee

82. The Committee currently comprises ten elected and three lay members. The quorum of the Committee is five MPs and one lay member, the quorum of any sub-committee three MPs and one lay member. The Chair is, under the Standing Order, a senior Opposition MP. Unlike Departmental Committees (which scrutinise government departments) its members are not elected by other MPs but are appointed after discussion between the business managers of the various parties. Unlike other Select Committees, again, it was set up to have no Government majority, but the current representation of parties in the House has given it a majority from the parties of the governing coalition.[93] Angela Eagle argued strongly for there to be guarantees that there could not be a Government majority on the Committee on Standards,[94] but Andrew Lansley rebutted the notion that the public worry about the political balance on the Committee on Standards—"Clearly, MPs can, should, and do leave their party allegiance at the door"—though he suggested that the size and composition of the committee, including the number of lay members, should be revisited "in order to maximise public confidence".[95] At a time of intense electoral uncertainty, we do not think it is possible to stipulate that there should never be a majority from a governing coalition but the convention that no one party should have a majority on the Committee should be preserved.

POSITION OF LAY MEMBERS

83. The current position of the lay members on the Committee—in that they cannot vote, but nonetheless carry influence—is not widely-understood. Lord Bew, who favours giving the lay members a vote, said that:

    The most revealing moment in the Maria Miller case was when the Prime Minister said, incorrectly, that the lay members had voted a certain way. That tells you that we would all be in a better position if he had been able to say it correctly. He obviously thought that—I understand that it was an error—so in other words it tells you that, in principle, it would have been desirable to be able to make that statement from his point of view, regardless of the actual detail at the time not being correct, in my opinion.[96]

84. Witnesses from the professions told us that there is rarely— or never—a split in the vote with lay members on one side and professional members on the other.[97]However, Professor Sir Peter Rubin (from the GMC) did note that, in questions of adjudication, sometimes the lay members took a more compassionate view of misconduct than their professional counterparts: "Actually, it was the doctors going for the jugular. It was the lay members who were saying, 'Oh, we are all human. Give the guy a chance.' The perception that we were a doctors' club is rather misplaced."[98]

85. The Joint Committee on Parliamentary Privilege considered the question of whether lay members should be given a vote. It noted the difficulties in giving the House of Commons statutory authority to decide who voted in its proceedings and concluded against this. It also noted the risks identified by the Procedure Committee if the House gave lay members a vote without statutory authority:

    The Procedure Committee of the House of Commons, in considering the issue of lay members, heard arguments suggesting that the addition of lay members would not call the Committee's privileges into question, or that the courts would not take such a case. Nevertheless, the Committee concluded that if lay members were to be given voting rights, legislation should set the matter beyond a doubt. The Committee believed that appointing lay members in the absence of such legislation would carry a "strong element of risk", in that it could "lead to conflict between the House and the courts and might have a chilling effect on how the Committee conducts its work even before such a challenge emerged".[99]

86. As we have already described, in practice the lay members have powers stronger than a simple vote. For a start, the Committee cannot meet unless a lay member is present, and it would be open to lay members simply to withdraw from any proceedings which they considered unfair, and so prevent their continuation. More significantly, the lay members have power to append opinions to reports, setting out their views in extenso. Andrew Lansley was correct to speculate "Given the way in which the Committee works, it may well be the expectation of the Committee that no report would be agreed that did not command the support of the lay members." As he also said "It is difficult to get that message across, but in the context of your current inquiry it would be helpful to look specifically at whether in the rules—the Standing Orders that apply to the Committee—we make explicit the lay members' veto, which is presently implicit."[100] Lay members have also suggested that they might wish to offer comments relating to matters beyond the immediate subject of a Report. There is no current prohibition on their doing so.

87. The existing position of the lay members is strong, contrary to some external portrayal. Consequently, giving them the right to vote would not have sufficient benefits to outweigh the risk. Instead, we recommend that on those occasions when no lay member wishes to append an opinion this should appear in the body of the Report, not simply in the minutes. Should any lay member present dissent this could also be recorded, with a reference to any opinion presented. We also hope that lay members will not feel inhibited from including in their opinions comments on wider issues arising from the Commissioner's memoranda.

LAY MEMBER TERM LENGTH

88. The lay members were appointed following open competition, they are 'lay' because they had not held positions in either House of Parliament. An appointment panel recommended six names to the House of Commons Commission, which chose three names to put to the House of Commons. In addition to advertisements on the Parliamentary and other websites, a search agency was used. We consider this was an appropriate way to identify lay members, and do not recommend any changes to the processes.

89. Lay members are currently appointed until the end of the Parliament but their appointments may be renewed for no more than two years in the succeeding Parliament. There is no Standing Order provision that reappointments can be staggered and it is currently for the House of Commons Commission to decide what reappointment terms to recommend to the House. This places the Commission in an invidious position in that if all lay members are willing to be reappointed it has either to impose reappointments of different lengths, to ensure a regular turnover of lay members, or accept that new lay members will take up their posts without the experience of working alongside more experienced peers. The procedures for appointment and reappointment of lay members prevent the constitutional oddity of there being lay members in place when Parliament has been dissolved or before a Committee is in place in the new Parliament. But this system has considerable disadvantages. The lay members have no clear term of office. If two elections follow in swift succession the experience of lay members may be lost, even if they have served only a short time. It should be possible to recast standing orders in a way which makes clear that lay members have their status only at times when the Committee is itself in existence. If this were done, it would be possible to provide for fixed terms. Lay Members need to understand the House without being in place long enough to be "captured" by it. Given the relative infrequency of Committee meetings, and the fact of suspension of all business for elections, we consider terms of up to six years would be appropriate, and that these terms may extend into the subsequent Parliament. We make further observations on the appointment of lay members below.

COMMITTEE SIZE AND COMPOSITION

90. We accept that parity of numbers between lay and elected members would be a strong statement of the equality of all members of the Committee on Standards. This would have a number of other consequences. The first is financial. Lay members receive a payment per day worked, plus their expenses for attending each meeting.. The average cost of attendance at a meeting by a lay members is just over £500. This will vary in future as new lay members are appointed, but we would expect the current policy of recruiting them on a UK-wide basis will continue so the figure is unlikely to change substantially. More lay members would increase the cost per meeting. Another consequence will be in terms of Committee size: experience suggests that too large a Committee becomes unwieldy. After considering various Committee sizes we recommend a marginal increase in Committee size from thirteen to fourteen, with seven lay and seven elected members. We believe that such a distribution would help to allay public concern, while still allowing MPs to be appointed in rough proportion to representation in the House.

91. If Committee size changes the quorum will need to be reconsidered. The Committee cannot currently meet unless a lay member is present, and the current requirement for both lay members and MPs to participate should continue. The Committee on Standards, like the Committee on Standards and Privileges before it, can meet only if five members are present. That is a quorum of half the membership, rather than the third which is typical in most Committees. The minimum quorum for a Commons Committee, of any size, is normally three. Stipulating that three lay members and three members were needed for a quorum would mean that the normal rules applied to each "part" of the Committee, but that the Committee would need nearly half its total membership to be present at any meeting. We think this is appropriate. We recommend that the quorum be three lay and three elected members for the full Committee.

92. We accept that these changes are likely to result in further developments in the way the Committee works. It is possible, or even likely, that lay members will be the majority of those present at any given meeting. Lay members will be taking time away from their normal working place or places, and will be unlikely to have other calls on their time while they are within the parliamentary precincts. Experience has shown that the demands on MPs' time are such that they cannot always attend Committee meetings.

93. If there are to be seven lay members, then the current arrangements for reappointment need to be reconsidered. Too great a turnover among lay members would impose considerable recruitment costs. The Standing Order is expressed in terms of appointment and reappointment because a fixed term would have meant that lay members of the Committee on Standards continued in post between elections even when there was no Committee in existence. If the House accepts our recommendation for seven lay members we believe fresh appointments should be made in two tranches, comprising four and three members respectively, each Parliament. If the current system persists, and the House is unwilling to make fixed term appointments there needs to be scope for flexibility if a Parliament ends suddenly. The presumption would be that lay members of longer standing would be reappointed for a two or three year period, while those most recently appointed would be reappointed for three or four years. The restriction on reappointment in more than two successive Parliaments should be replaced by a cap on the number of years a lay member may serve, or that may elapse from his or her first appointment. That would allow orderly recruitment of replacements, and ensure that new lay members had the opportunity to work alongside more experienced colleagues.

94. A larger committee might also wish to work through sub-committees more than is done at present. Sub-committees may be more cost-effective and more flexible in their timing. As this inquiry shows, lay members can take the chair for at least part of their proceedings. It will be for future committees to decide how to use sub-committees, but we consider they offer a welcome flexibility. Just as now, they could be used to take forward policy. A sub-committee might also be used to support the Commissioner, for example in cases where the Commissioner needs to ask for the Committee to use its powers to order the production of persons, papers and records. Currently, the Commissioner can discuss difficult matters informally with the Committee Chair or with the entire Committee—a sub-committee might also provide a useful informal sounding board, with the advantage that there would, by definition, be lay input into discussions. In any such cases, of course, the Commissioner would retain the final decision.

95. Currently no more than seven MPs can serve on any sub-committees, and the quorum is three MPs and one lay member. We recommend that the quorum for sub-committees should be reduced to three, of whom one must be an MP and another a lay member. We also consider there should be no restrictions on the number of members of a sub-committee. We are confident that the good sense of the Committee will ensure that a sub-committee is appropriate for the task it is to undertake.

THE INVESTIGATORY PANEL

96. Standing Order No 150 currently provides for the Commissioner on her own volition or at the request of the Committee, to appoint an investigatory panel to help her establish the facts of the case. The panel is to consist of the Commissioner, in the Chair, and two assessors, one of whom shall be a legally qualified person appointed by her and the other an MP who is not on the Committee. This provision has never been invoked, and therefore its procedures, which are to be set by the Commissioner, have not been established. We understand that the panel might be useful in providing a fresh but legally expert perspective in the event of a case where the facts were seriously disputed. Nonetheless, we question whether it remains necessary. No Commissioner or Committee has found the need to invoke it and we recommend that this need for an investigatory panel should be reviewed in the light of the lay membership and our recommendation on sub-committees.

APPOINTMENT OF MPS AND CHAIR

97. The members to be appointed to the Committee on Standards by the House are nominated after discussion between the party authorities rather than being nominated after being elected by the members of their parties in the House as is the case with many other committees. There are good reasons of principle why they should be elected, but there is also a question as to whether the best-qualified candidates would put themselves forward. Unlike the Chairs of Departmental Select Committees and of the Political and Constitutional Reform Committee, the Environmental Audit Committee, the Select Committee on Public Administration and the Public Accounts Committee, the Chair of the Committee is elected by the Committee from among the MPs appointed to it. We recommend that the Chair of the Committee be elected by all MPs as we believe this would enhance the confidence of the House in the Committee.

Role of the Commissioner

98. The role of the Commissioner, as Sir Philip Mawer reminded us, was introduced to be a crucial part of the independent voice within the standards system;[101] indeed, the Commissioner was from 1995 to 2013 the only independent voice. The introduction of a new element into any system has implications for the interrelationship of all the parts and that the introduction of an additional independent element in the shape of the lay members must inevitably affect the Commissioner's role and relationship to the Committee. This relationship is, as she says, based on mutual trust, and nothing we say in this part of the Report is intended in any way as a reflection on the way in which she and her predecessors have carried out their functions.

99. An independent Commissioner with security of tenure is, and must remain at the heart of the system. Her right to publication of her memoranda in full is crucial to the transparency of the system and her Annual Report on her work provides a useful picture of the actuality of the situation and trends in her work. Her independence is separate from the lay members. It should not be reduced as a consequence of their introduction.

100. The Commissioner rightly prizes her independence very highly and it is crucial to her performance of her role. The Commissioner explained the relationship between herself and the Committee as being one of oversight but not direction. She wrote:

    'Oversight' is not defined anywhere but when the two standing orders (No's 149 and 150) are read together, it is clear that the Commissioner makes his or her own decisions on whether or not to begin an inquiry (subject to certain specific provisions about consultation with the Committee) and that his/her conduct of investigations is a matter for the Commissioner to determine. The Commissioner is required to make certain reports to the House (and does so via the Committee). It is, of course, for the Committee to consider whether the provisions of the two relevant standing orders provide sufficient clarity about the respective roles. From my perspective, the relationship is one of co-operation rather than collaboration and that is as it should be. It is fundamental to a good working relationship that there should be both trust and respect on either side. The loss of such a relationship would be very damaging to the standards process.[102]

101. The Commissioner has complete discretion, within her remit, as to whether or not to accept a complaint, though she regularly reports informally to the Committee on the numbers and kinds of complaints received. She can also impose certain sanctions by her own decision. Where she finds that there has been a breach of the rules but that it is minor, she may agree rectification herself: (see paragraph 28). It is in keeping with the Commissioner's independence of action that she has freedom to accept or reject complaints, and we consider that her authority to agree rectification in minor cases is proportionate.

102. The Commissioner cannot compel someone to appear before her or produce documents, The Committee can require the production of documents and can—unlike other House of Commons Committees—compel (rather than request) the attendance of an MP. The Committee on Standards is willing to require production of documents or even compel the attendance of an MP, should the Commissioner require it: her lack of such a power has not hitherto been a problem.

REMIT OF THE COMMISSIONER

103. Paragraph 105 of the Guide to the Rules sets out the areas which are outside the Commissioner's remit: She is unable to accept complaints about

·  policy matters or a Member's views or opinions

·  a Member's handling of or decision about an individual case (whether or not the individual is a constituent of the Member)

·  the funding of political parties

·  alleged breaches of the separate Code governing the conduct of government ministers in their capacity as Ministers (the "Ministerial Code")

·  what MPs do in their purely private and personal lives.

104. The Commissioner will not entertain anonymous complaints. Conduct in the Chamber is a matter for the Speaker. If the allegation is of criminal misconduct which may more appropriately be investigated by another agency, the Commissioner will advise the complainant to approach that agency.[103]

105. Most of the complaints the Commissioner receives are outside her remit. She told us, for example, that in April to July 2014, of 165 complaints received:

·  6 were accepted

·  159 were declined

·  Over 80% of those declined were out of remit

·  Well over 80% of out of remit complaints were about MPs' handling of individual cases and constituents' problems`

In addition to the 124 complaints about how a MP had handled an individual case or problem, out of remit complaints included: 5 about Ministerial/Prime Ministerial action or behaviour; 4 about proceedings in the House; 2 about an MP's manner (specifically about allegedly abusive behaviour witnessed/experienced); 8 about MPs' views and opinions (including some expressed through social media); 2 alleged data protection breaches and 2 about MPs as employers. The balance were 'one-off' complaints.[104]

106. Peter Riddell, speaking of the system as a whole, was concerned that so many complaints fell outside the scope of the system. He raised the question of personal conduct, saying:

    There are two acute problems. One comes within the domain of your Committee and the public think that the other one should. The one that comes within the domain of the Committee is where there are no criminal issues, but where issues still relate to the code of conduct and so on. That has not led to criminal action, but has led to sanction and criticism from the Committee. The other one, about which the public are concerned—you are basically concerned with financial disclosure—is what is regarded as bringing the House into disrepute or unethical or immoral behaviour, which does not fall within the remit of the Committee, but the public think ought to. There are not many cases, but that is where the problems arise.[105]

107. The question of what the Commissioner's remit should be does not go unexamined. The House takes its decisions on this after advice from the Committee, which is itself advised by the Commissioner, who has detailed knowledge of all complaints. It has been one of the indicators of the Commissioner's independence that she has not hitherto generally shared rejected complaints with the Committee, though her last annual report contained more information about these than its predecessors.[106] We understand that the Commissioner would be willing to share more information with the Committee about rejected complaints, and we believe that the introduction of the lay members means that this would now be appropriate.

108. The Commissioner does not currently always tell an MP about the receipt of an out of remit complaint made against them. We have some sympathy with the view that MPs should not be troubled by being told about complaints against them that are not within remit. As in most complaints systems, the Commissioner receives a number of repeated or vexatious complaints or complaints about which it is not necessary for the MP concerned to know. There is, however, a counter-argument that where none of the above apply, MPs would prefer to be fully informed about complaints (especially those about their level of service to their constituents), not least to ensure that they receive feedback which shows whether their offices are working efficiently. We note that the Commissioner does sometimes alert an MP to the fact that such a complaint has been made about them, especially where a pattern emerges. We recommend that the Commissioner should consider more often informing MPs about out of remit complaints which relate to them.

THE INVESTIGATORY ROLE

109. The Commissioner's most high profile role is as the investigator whose findings come to the Committee. One of the criticisms frequently levelled at the system is that there is insufficient separation between the advisory, investigatory and adjudicatory functions.

110. When the Commissioner prepares a memorandum to the Committee she goes beyond setting out her findings as to the facts of a case; she also provides the Committee with a view as to whether the Code or rules have been broken. This was clearly appropriate when there was no independent element on the Committee, but some witnesses argued that the case for that is now less clear, and the argument for a clear separation of powers stronger. Richard Caborn suggested that "you have to distinguish with the Commissioner that he is either a prosecutor or he is not."[107] The Committee on Standards in Public Life recommended that the Commissioner focus on the role of investigator (and should be able to draw inferences) but that role of decision-maker (adjudicator) be given over to a sub-group of the Committee on Standards, in the interests of fairness.[108]

111. In our view, since as a general rule by submitting a memorandum to the Committee the Commissioner is expressing a view as to whether the rules have been broken, there is little point in preventing her explaining her reasoning for the conclusion.

112. It is also suggested that the Commissioner should not be both advice-giver to MPs and investigator. The confusion has arisen because of the Commissioner's role under Standing Order No 150(2) (c):

a)  To advise the Committee on Standards, its sub-committees and individual MPs on the interpretation of any code of conduct to which the House has agreed and on questions of propriety.

113. We consider the Commissioner's advice-giving role is appropriate. She has an overview of the rules, and of the way in which cases have been decided in the past. However, there is a difference between advising on the interpretation of the rules in general terms, and interpreting the rules in the context of a contested case. We believe the reported confusion between the Commissioner's role as investigator and the Committee's role as adjudicator has arisen from disputes about interpretation.

114. There have been occasions when the Commissioner and an MP under investigation have held differing interpretations of the rules. In such cases, the current Commissioner has advised MPs that they may bring this matter to the Committee before she completes her investigation, or has offered to do so herself. No MP has yet taken up this offer, but much time and trouble might be saved if this were to be done. While we fully understand the Commissioner's reluctance to invoke the Committee before the conclusion of an inquiry we do not think she should necessarily wait for the MP's assent before she brings such a question of interpretation to the Committee; it should be sufficient for her to inform him or her that she will do so. We recommend that in cases where there is dispute about the meaning of the Code or the rules, the Commissioner should be free to bring the matter to the Committee before she submits a memorandum. In some cases, the Committee will need to see a memorandum before it can decide on the matter, but in others it may be able to give guidance on principle at an early stage. It should be for the Commissioner to decide whether there is indeed a matter which the Committee should resolve in principle; otherwise there would be a danger the interpretation of the rules would be challenged in every case.

115. As is usual with Select Committees, the Chair holds briefing meetings with Committee staff in advance of all meetings, and the Commissioner attends these. She is also present in the Committee room when the Committee considers her memoranda. This was perceived by one witness at least as unfair. Mr Caborn said "you have the Commissioner meeting the Chair before the Committee"[109] and "The Commissioner sits in the Committee; as I understand it he sits there by invitation, but more by custom and practice, in just about all the meetings. When I tried to argue the tariff with the Committee, the Commissioner was sat at the side of the Chair".[110]

116. As we said in paragraph 112, the Commissioner's role is to advise the Committee and also to advise individual MPs. Her meetings with the Chair and her presence in Committee meetings are a function of this, and are necessary to ensure a timely and proper process. The Chair does not see memoranda on cases in advance of the rest of the Committee. While the Commissioner is present in the Committee room during consideration of memoranda, it is not as prosecutor but to answer questions on the memorandum. The Committee would have no hesitation in asking her to leave the room during questioning of a witness if they felt her presence was likely to be misinterpreted. In any case the presence of the lay members should allay any questions about propriety.

Role of the Committee in general standards matters

117. One consequence of the strong external element on the Committee is that it is in a position to work with the Commissioner to play a more creative role in setting standards. The view of the then Leader of the House was that the MPs would value this input:

    It seems to me, on the face of it, that the House looks to the Standards Committee to be a source of that kind of impetus. It might be that you would think in terms of the Standards Committee not only imparting a view about what standards are expected, and about what the consequences would be where people fall down on that in individual cases, but about a continuous process of engagement with Members of the House in terms of what standards are expected, to avoid having cases that illustrate it by virtue of breaches. [111]

118. While the Committee already does some policy work on its own initiative at present, for instance on All-Party Parliamentary Groups[112] (and in the case of the present Standards Review Sub-Committee), its main work is reactive to the inquiry work of the Commissioner. Unlike other scrutiny committees it does not regularly carry out inquiries into general topics. There would be advantages in the Committee and Commissioner working together to identify topics for consideration and who would lead on each. We recommend that our successor Committee, in discussion with the Commissioner, sets itself a theme-based work programme at the beginning of each Parliament.

119. Gordon Hockey offered a suggestion whereby the Committee could exercise greater leadership:

    We [at the RCVS] will use our complaints and disciplinaries as a means to promote guidance; people like nothing better than to look at the misfortune of others, so the website hits for the DC [Disciplinary Committee] pages are very high. We will craft press releases and we will try and get the message out. It is twofold. First of all, you get the message about the rule out. It was sufficient to take forward and, therefore, the profession knows. It also allows confidence from the public. They can see that something is happening.[113]

In this way, the RCVS explains its work and its impact, engenders higher confidence on the outside, and promotes engagement with and understanding of appropriate conduct on the part of their members. The Committee on Standards already asks the Chair to write to all MPs drawing lessons from cases, where appropriate. The Commissioner also regularly issues guidance. We will consider whether these communications can be made more effective and put in the public domain.


93   Q90 Back

94   Q53 Back

95   Q65 Back

96   Q20 Back

97   Q196 Back

98   Q207 Back

99   Joint Committee on Parliamentary Privilege, Session2013-14, Parliamentary Privilege, HL Paper 30, HC 100, para 102 Back

100   Q51 Back

101   SSC0006  Back

102   SSC0022 Back

103   Code of Conduct and Guide to the Rules relating to the conduct of Members, para 105 Back

104   SSC0022 Back

105   Q2 Back

106   Parliamentary Commissioner for Standards Annual Report 2013-14, 354 Back

107   Q168 Back

108   SSC0014 Back

109   Q167 Back

110   Q173 Back

111   Q47 Back

112   Committee on Standards, Sixth Report of Session 2013-14, All-party Parliamentary Groups, HC357 Back

113   Q199 Back


 
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Prepared 10 February 2015