House of Commons - The Standards Systems in the House of Commons

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

5 The detail of the system

120. We turn now to some matters of detail. If any system is going to work ^.

· Rules must be clear

· Reliable guidance should be available to individuals in cases of doubt

· Investigations should be fair

· There should be an appropriate appeals mechanisms

· Sanctions should be proportionate

In our view, the current system broadly meets these requirements, but we have some suggestions for improvement.[114]

Clarity and availability of rules and guidance

121. The percentage of serving MPs who were elected before 1997 is only 21%. Therefore an overwhelming majority of MPs have never known the House of Commons without the Code and Commissioner. A third entered it in full knowledge of the expenses scandal. Given that the vast majority of MPs have been subject to the system for their entire parliamentary careers, it might be expected that they would be familiar with it.

122. Peter Riddell could not understand why any MPs might not be aware of the Code: the rules are long-standing, and clear. "Indeed", he said, "the breaches that there have been in this Parliament have been blatant." [115] "I cannot see, of the cases we have had in the current Parliament, that there is any ambiguity about any of them." [116] The evidence is, indeed, that the great majority of MPs do comply with the required standards. As Angela Eagle said:

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123. Angela Eagle believed that some issues—e.g. the ban on paid advocacy—were very clear now, and that the culture of compliance on these issues had improved over time; but that an MP's involvement in public life threw up complexities which need to be understood.[118]

124. Despite the publication of Code of Conduct and Guide to the Rules in both hard copy and electronic format (which is sent to all MPs after election), and the fact that that induction is provided for MPs after election and that their attention is also drawn to any revisions of the Code and Guide, we received evidence that some MPs were unaware of the documents. [119]

125. Not all the rules are as accessible as the Code and Guide. The Commissioner can investigate complaints about breaches of certain rules drawn up by other House authorities, for instance about the use of stationery and catering facilities. The rules regarding the catering facilities are to be found on the parliamentary intranet under 'catering and outlets', then 'banqueting' (sub-head 'House of Commons' and then as 'Conditions of hire' at the bottom of the page). On the main parliamentary website they appear under 'Visiting Parliament'. The rules relating to stationery lie with the Department of Facilities and can be found by searching the indices of the external and internal websites. We share the Commissioner's concern that the rules regarding use of stationery, refreshment facilities and other matters are not as easily found as the Code and Guide, and welcome her efforts to collate all the applicable rules in one place. Modern technology should facilitate the provision of them to all MPs as an app.

Guidance to individuals

126. To win the active assent of those subject to it, any regulatory system must provide for reliable advice to individuals seeking guidance in respect of particular circumstances. Judging from the evidence of the MPs and former MPs to whom we spoke, there is an un-met need for guidance to individual MPs, both in respect of individual circumstances and when an MP is the subject of a complaint. However, we also recognise that advance guidance is always given on the basis of the precise language of the question. The subsequent activity may not actually match the original question and the original advice.

127. MPs who were unsure of the rules reported falling back on a number of expedients. Concern about how behaviour might be reported in the media was reported as being a powerful incentive to good behaviour. Laura Sandys said:

Express

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James Arbuthnot concurred: "Absolutely".[121] MPs also reported falling back on what they knew to be right.[122] And, though no witness mentioned them, the Speaker's Chaplain and duty Roman Catholic priest, whose details appear on the parliamentary website (a Methodist minister also attends once a month) list pastoral work in the House as one of their duties. MPs also naturally turn to their party whips for advice and absorb the ethos of Parliament from more experienced colleagues; the latter may be risky if the knowledge of the 'experienced colleague' concerned is out of date.

128. We are conscious that pressure of work leads MPs to rely heavily on assistance from their staff. While it is the case that MPs are responsible for the work done by their staff, it is important that senior staff in particular are enabled to understand and apply the standards expected of the MPs.

129. The Commissioner's Office is the main source of official guidance in relation to the Code of Conduct and the Guide to the Rules but the relevant House authorities are responsible for giving advice on other sets of rules such as those relating to stationery. As the Commissioner says, MPs seek advice mainly in relation to specific issues. There is, however, an acknowledged tension between the Commissioner's advice function and her investigatory function (see paragraphs 131 and 132); to assuage this, the day-to-day advice is given by the Registrar of Members' Financial Interests.[123] Nonetheless the Commissioner is available to speak in confidence to individual MPs and accepts such requests several times a year.

130. Some of the MPs and former MPs to whom we spoke expressed concerns about the advice function of the Commissioner's office. These concerns included apparent retrospective reinterpretation of the rules and a perception that advice acted on in good faith could be found to have been incorrect. As James Arbuthnot explained:

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David Howarth made a similar point:

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131. Of course, no advice system which separates the advice function from the adjudicatory one can provide an absolute guarantee that taking advice will protect the seeker from criticism: at best it can provide a mitigation if a breach of the Code or Rules is later identified. To that extent James Arbuthnot is right.

132. The tension between the Commissioner's advice and investigatory functions becomes acute when a complaint arises, and this has led to suggestions that they should be separated. The Commissioner opposes such separation:

I consider that interpretation of the rules and advice on ethical issues is a fundamental part of my role. It is not unusual in complaints handling organisations for there to be an advice-giving function alongside a responsibility to investigate individual complaints, and with care the two roles can be managed.

It is, I think, almost inevitable that Members would still wish to consult with the Commissioner and his/her team about how the Commissioner will interpret the rules in any given set of circumstances, since it is the Commissioner who will make the determination in the event of a complaint. That might make it impractical to separate the roles on a day-to-day basis.

Without first-hand knowledge and experience of complaints and Registration, an Ethics Officer would either have to identify themes to pursue on the basis of what (s)he thinks may be topical/interesting for Members or to rely on retrospective data from the Complaints Team. Any educational function with Members would require the Ethics Officer to have an effective working knowledge of the existing rules and to be aware of precedent complaints, making it difficult to achieve a separation from the rest of the team.

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133. We agree with the Commissioner. Members of Parliament who wish to receive advice on specific issues should approach the Office of the Parliamentary Commissioner for Standards. If they do so, and accept the advice offered, the Commissioner and Committee should bear this in mind when considering any subsequent complaints about their conduct. The same applies where the advice sought and accepted came from other responsible House of Commons authorities. MPs should always ask for advice to be confirmed in writing.

134. We understand why some MPs would like to see the advice function separated from the investigation one, but there is a question of proportionality and cost. The system is designed to cover 650 people, and we believe that to introduce a separate advice function would be disproportionate.

Fairness

THE PROCESS

135. If an MP is investigated, it is important that the system for investigation is fair. The House has thought it appropriate to adopt an investigatory rather than an adversarial process. The Commissioner investigates and presents her findings to the Committee. The Commissioner's note 'Procedure for Inquiries' (which is sent to the MP when the Commissioner has accepted a complaint) explains the process:

Members will be informed about allegations against them when the Commissioner has decided there is sufficient evidence to justify initiating an inquiry. The Commissioner will write to the Member concerned. In this letter the Commissioner will: tell the Member the nature of the allegation; set out the relevant rules of the House; provide the Member with the evidence supporting that allegation; and ask the Member for their response. What is asked of the Member is to give a full and truthful account of the matters which have given rise to the allegation.

In the course of the inquiry the Commissioner may ask the Member follow-up questions, seek evidence from any witnesses, including any identified by the Member, and consult authorities such as the relevant Department of the House of Commons, or the Registrar of Members' Financial Interests. The Commissioner may interview the Member in the course of the inquiry, and will always see or speak to the Member if the Member so requests. When interviewing the Member, the Commissioner will normally make a record of the interview and subsequently clear that record with the Member to ensure its accuracy.

…

Under paragraph 19 of the Code of Conduct Members are required to cooperate, at all stages, with any inquiry. The Committee may also exercise its power to summon persons, papers and records, either independently or at the Commissioner's request.

A Member has the right at any time to provide any evidence he or she wishes to the Commissioner, including drawing attention to the names of any witnesses which he or she believes to be material to the consideration of the allegation. Except where an Investigatory Panel has been appointed, the Member does not have the right to cross-examine directly witnesses who may have given evidence in support of the allegation. However the Commissioner will put to the Member all material evidence in support of the allegation so that the Member may have an opportunity to challenge it if he or she so wishes.

Any evidence which a Member supplies can be expected to become public, although the Commissioner and the Committee are ready to consider requests for the deletion of confidential and personal information which is not relevant to the resolution of the inquiry.

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136. When the Commissioner has concluded a Memorandum, she sends it to the MP, currently minus her analysis and conclusions. The Member is given time to comment on it; when the Commissioner has considered any points the Member makes she adds her conclusions and sends it to the Committee for consideration. It is open to the Committee to ask her to seek further information, it may seek further evidence itself.

137. The MP who is the subject of the inquiry may ask to appear before the Committee for an evidence session. This is held in private, but a transcript is subsequently published. Richard Caborn and Bill Wiggin told us that they would prefer hearings to be held in public,[128] and we return to this question when discussing media matters. They have also told us that they are discouraged from asking to appear in person to explain their side of things.[129] We would deplore any suggestion that any MP should be dissuaded from providing any evidence to the Commissioner or to the Committee that would assist in resolving a case.

138. While Bill Wiggin was concerned that he felt that he was expected to incriminate himself,[130] we consider that the system gives MPs safeguards even before the matter reaches the Committee. MPs may produce to the Commissioner any evidence they consider relevant and are given the opportunity to comment on the factual sections of her Memorandum before it goes to the Committee. A further safeguard could be introduced if the Commissioner were to provide investigated MPs with her analysis, and we understand that she would not object to doing so. We expect our successor Committee and the Commissioner to consider how this might be done.

139. We have discussed above (paragraph 141) the propriety of the Commissioner being present in the Committee room when the Committee are discussing memoranda.

140. When the Committee has considered the Commissioner's memorandum, an agreed Report is made to the House. When the Committee is at variance with the Commissioner, the publication of the Commissioner's memorandum with the Report means that they are obliged to explain the reasons for the difference of opinion.

STANDARD OF PROOF

141. The Commissioner uses a civil standard of proof. Her note on the procedure for inquiries says:

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Gordon Downey had used a similar approach when he was Commissioner, writing:

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142. Bill Wiggin argued that making of judgements based on probabilities was one of the reasons why the adjudication process could not be fair:

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He therefore advocated MPs being held accountable to a contract of employment rather than a Code of Conduct. Since, as we have explored, MPs are not in an employment process, we cannot see how this would work. Moreover, employers might take disciplinary action based on the civil rather than the criminal standard of proof, and most professional conduct bodies, such as the Solicitor's Regulation Authority, use the civil standard of proof, and the Law Commission has recently recommended that the civil standard of proof should continue to apply to all fitness to practice hearings in the health and social care professions.[134]

143. The civil standard is a single one; in principle the same standard, of balance of probabilities applies regardless of the seriousness of the allegations. But case law also makes clear that certain types of conduct, may be regarded as intrinsically less probable than others, [135]and those adjudicating will bear this in mind. In practical outcomes, there is likely to be little difference between the current formulation used by the Committee and Commissioner and the practice of the courts. The standard used by Commissioners has in effect been the normal civil standard tempered by the view that some things are inherently implausible. We consider that the wording in the Procedure for Investigations is more readily understandable by those who are not legal practitioners. We conclude that the standard of proof used by the Commissioner and Committee is appropriate.

144. We are confirmed in our belief in the essential fairness of the process by the recent decision of the European Court of Human Rights (ECtHR) in the case of Geoffrey William Hoon against the United Kingdom. Mr Hoon, a former MP, had been found by the Commissioner and Committee to have breached the Code while still serving as an MP. Mr Hoon applied to the ECtHR on the grounds that there had been a number of violations of the Convention on Human Rights, that he had been denied access to a court to appeal against the legality of the parliamentary proceedings and the sanctions imposed, that his right to private life had been violated and that he could not bring judicial proceedings to challenge the decisions of the Commissioner, Committee or House. The ECtHR unanimously declared Mr Hoon's application inadmissible. Particularly relevant is their statement that "the Court considers that the procedure followed gave the applicant a fair opportunity to put his case and defend his interests, as regards both his status as a public office-holder and as regards his private reputation". The judgement also found that "the interference with his private life was not disproportionate to the legitimate aim pursued".[136]

SUPPORT FOR MPS

145. Even though we are confident the system is broadly fair, we believe MPs who are the subject of a complaint need some additional support and advice. A specific concern was that once the Commissioner has received a complaint, her office will not give the MP advice, other than purely procedural advice. Bill Wiggin said:

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146. MPs may be accompanied during interviews with the Commissioner, including by a lawyer,[138] but may not be represented. The same applies at Committee hearings, although the right to be accompanied is rarely used. The process is designed to investigate an apparent problem based on the evidence found, without introducing an adversarial element. To allow legal representation, as some would wish, would change the system fundamentally. There is also the question of where the costs of support would fall. They could be borne by public funds but, despite the argument that no price should be put on justice, it is arguable whether this would be justifiable when the client group is so small and the actual breaches of the rules are frequently so minor. Alternatively the MP could pay, but then there arises the question of equality of access. (Whether or not a system of professional indemnity insurance as used in the professions would be proportionate in view of the numbers involved is questionable.)

147. The House's regulatory system needs to be robust and proportionate. It should not attempt to replicate court proceedings and MPs themselves should be capable of presenting arguments to the Commissioner. The current practice whereby an MP may be accompanied, but not represented, by a colleague or adviser is appropriate.

148. We have considered whether the system of assistance and support could be formalised. There is, we believe, scope for a cadre of MPs, interested in and informed about standard matters, who could advise MPs on ethical conduct and advise and assist them when they are the subject of a complaint. They might also play a role in the further development and understanding of parliamentary standards. A practical problem arises, however, in that the most suitable MPs for this role would probably be those with experience of the system and these would be likely to be former members of this Committee. The most common reason for MPs to leave the Committee is that they are leaving the House (in which case they might not be available) or promotion to ministerial or equivalent opposition rank, in which case the party allegiance which serving MP members of the Committee successfully 'leave at the door' might well once again become a factor. Nonetheless, it would no doubt be of benefit to MPs who find themselves the subject of a complaint to have a source of support and advice, and if MPs wished to volunteer for such a role we would expect the Commissioner's office to give them such advance advice and assistance as would serve them if they were called upon. This might mitigate the tendency of MPs to seek informal advice 'in the tearoom'.

APPEAL

149. We have considered whether there are sufficient opportunities for the MP to challenge the findings of an inquiry. The MP may, in effect, appeal from the Commissioner to the Committee. The Committee's role is to scrutinise the outcome of the Commissioner's inquiry. The Member may then appeal to the House, which may amend the recommendation of the Committee. The advantages of any appeal mechanism from the Committee's findings before a matter reached the House would need to be balanced against the consequent delay (see paragraph 165 for the timescale of inquiries).

Sanctions

150. Just as it is important that the process is seen to be fair and proportionate, if the public is to develop confidence in in the system for identifying and punishing breaches of the Code or Rules by MPs the sanctions must be seen to be sufficient and defensible. The penalties are not clearly understood outside the House, as is shown by the GRECO recommendation that the penalties should be reviewed.[139]

151. The penalties at the Committee's disposal range from simply reporting that a breach has occurred, to, in principle at least, recommending expulsion from the House. Criminal investigations and legal proceedings will take precedence over the disciplinary procedures of the House.

152. At the lowest level, the Committee's sanctions will affect an MP's reputation. The fact a written apology has been required will be a matter of public record. Apologies on the floor of the House by personal statement must normally be made immediately after Question Time, when the House is full, and the matter prominent. MPs who apologise in form alone can be strongly criticised, and may face political consequences.

153. The Committee may also recommend financial penalties, such as withholding of salary for a period, suspension for a period (which carries automatic loss of pay and pension rights) or, ultimately, expulsion. In these last cases the House will debate the Committee's Report and may amend the suggested penalty.

154. Expulsion has not been used for over sixty years, but on two recent occasions when a long suspension has been recommended the MP has resigned by 'taking the Chiltern Hundreds'—a de facto expulsion. If the MP concerned wished to defend his or her reputation, expulsion would not be a final judgement: it would in theory be possible for the individual to appeal to the constituency by standing in the subsequent by-election, and the constituency would be free to return him or her. The voters would have the last say.

155. The general view of the witnesses was that the range of sanctions is very wide, and that this is appropriate. There was some concern that sanctions were inconsistently applied and that there are no guidelines. In this context Bill Wiggin suggested that tariffs might be published.[140] This would be difficult because no two cases are the same; failure to register an interest may spring from a desire to conceal something significant, or from simple oversight. In the case of sanctions imposed by parliament in criminal law, a range of sentences is generally allowed to the courts on the basis that there are always degrees of culpability and different mitigating or aggravating circumstances. A table of tariffs would in our view have so wide a series of ranges as to be wholly unhelpful. However, consistency is a guard against favouritism or inappropriate severity, and the Committee should maintain and publish its table of sanctions imposed. It would be possible to make available a digest of cases, and we note that the RCVS does so.

156. Concerns were also expressed about the possible impact of a finding of a minor misdemeanour on an MP's career and prospects;[141] but such concerns are not unique to MPs.[142] Questions were also raised about the interplay between any sanctions imposed by the Committee and any Act which results from the Recall Bill. The Committee has said that it will work to implement whatever Parliament decides on recall.[143]

157. We find the range of available sanctions to be appropriate and sufficient, but the Committee (in recommending sanctions), and the House (in imposing them), should be aware of how similar breaches of the relevant Code would be treated elsewhere.

Administration of the process

RECEIPT OF COMPLAINTS

158. Unlike in some of the countries we have looked at, there are no restrictions on who may submit a complaint, and we believe this to be healthy. Complaints must be signed and give a postal address. They must also be accompanied by evidence. Currently the Commissioner does not formally accept complaints submitted by email, though she will assist a complainant submitting in this way if she is of the opinion that the complaint is material. This insistence on hard copy is out of step both with public opinion and general House of Commons policy, and we recommend that (subject to appropriate checks on the identity of the complainant) the Commissioner should continue to accept only those complaints which are made in writing, but should make no distinction as to the format of that written complaint—i.e. that she should be enabled to accept complaints made by e-mail or via her website.

COMMUNICATIONS BETWEEN COMMISSIONER AND MP

159. When the Commissioner has decided to open an inquiry, she writes to the MP concerned. Sir Bob Russell said that this letter arrived without a 'confidential' marking, but this would have been contrary to the Commissioner's practice. We believe that the Commissioner's office makes every effort to ensure that communications with MPs are confidential and timely but would ask the Commissioner to review her practices to see if any improvement can be made.

160. In this context we note that Chapter 4 of the Guide to the Rules makes explicit the duty on an MP to co-operate with the Commissioner in any investigation. The Committee has regarded failure to co-operate as an aggravating factor when considering memoranda. Nonetheless, for the avoidance of doubt, we put on record that should a Commissioner, in our view, make unreasonable demands on an MP we believe that this Committee would not hesitate to say so. The same would apply to a complainant.

PUBLICITY

161. MPs have suggested that they are subject to an undue level of reputational risk^. and that there is no praise for MPs found to have behaved properly.[144] This is not unique to MPs: it is common to all regulated professions, although MPs are exposed to greater, and more persistent, levels of media attention than many.

162. The Commissioner is careful to avoid exposing MPs and their families unnecessarily to media attention, and she does not disclose the names of MPs against whom she has received a complaint unless and until she is satisfied that there is sufficient evidence to warrant her opening an inquiry, at which that stage she puts the name of the MP—though not of the complainant—on her website. It is not unusual, however, for the complainant to publicise the complaint, and the Commissioner's staff will always confirm, if asked, whether she has received a complaint; if she has not decided whether to open an inquiry they will say she is considering the complaint.

163. The name of the complainant is made public only when the Commissioner has prepared a memorandum for the Committee or made a rectification decision. The decision to withhold the complainant's name was originally made at the request of MPs, who felt that to release it would only increase the publicity accorded to a complaint which had not at that stage been upheld. We appreciate that some complainants might be deterred by the fear of publicity. However, we believe that equity would be served by publishing the complainant's name. We recommend that unless the Committee, after discussion with the Commissioner, decides otherwise, and subject to the usual protection against harassment and victimisation, the name of the complainant be made public at the same time as that of the MP. We recommend that this should be done unless in particular circumstances the Committee, or a sub-committee, agree that this should not happen.

TIME-SCALES

164. Not only do MPs have to deal with the publicity surrounding a case but cases can take a considerable length of time to resolve. The time taken by the Commissioner to complete an inquiry varies. In 2013-14, the range was from 30 to 408 days.[145] Some MPs complained about this, but it does not compare unfavourably with the time taken in some other systems.[146] We note also that an appeal system (see para 150) could only extend the length of time taken. In some cases, examination of the evidence appended to the Commissioner's memoranda shows extended intervals between the sending of and response to her letters, so in some cases the remedy may be in the MP's own hands.

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119 e.g. Laura Sandys (Q149) stated that: "The first time I have seen or have been conscious of the code of conduct has been in preparation for this meeting, so I am not sure that it is embedded anywhere." Back

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121 ibid Back

122 ' your own education, upbringing and background 'Q149 Back

123 SSC0022 Back

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125 ibid Back