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
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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
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