36.The following section of this Report sets out some easily achievable measures which the House can take to enhance the independence of the Committee, by increasing the powers of the lay members of the Committee on Standards, increase the independence of the Parliamentary Commissioner for Standards, and modernise the complaints procedure. We recognise that these will be only the first steps towards reforming the House’s standards system.
37.One of the problems with the House’s existing standards system identified by Dame Laura is that the lay members of the Committee on Standards do not possess full voting rights. Dame Laura is not the first to raise this.
38.Lay members were first appointed to the Committee in 2012. Initially there were three lay members and 10 elected members. In 2016 the number of lay members was increased and elected members decreased so there is now parity: seven of each. The lay members are recruited on merit through open and fair competition. Together with the elected members, they bring a diversity of thought and background to their work.
39.The fact that lay members do not have the same full voting rights as elected members has been rightly identified as a major weakness of the system. Standing Order No. 149 (5) provides that:
Lay members may take part in proceedings of the committee […] and may ask questions of witnesses, but lay members may not move any motion or any amendment to any motion or draft report, and may not vote.
In the discussion which follows, when we refer to “full voting rights”, we are referring to voting rights together with the right to move motions and amendments, i.e. to play a full part in the formal proceedings of the Committee on the same basis as elected Members.
40.There are some safeguards for the role of lay members. Any lay member has the right to append an opinion to a committee report. In addition, in our July 2018 report we put forward a proposal aimed at strengthening the position of lay members within the Committee, that “before dividing on any motion […], the Committee should hold an indicative vote of lay and elected members to ascertain the views on the motion of the Committee as a whole and of each member present”. Indicative votes would not be binding on the Committee but would enable each lay member to put her or his vote on the record. We commented that “this mechanism will flush out immediately whether the lay members have a different opinion from the elected members, it will inform elected members of the lay members’ views, and arguably act as a disincentive in those circumstances to proceeding to a formal division”. This proposal was agreed to by the House on 19 July and is now embodied in Standing Order No. 149 (5A).
41.Dame Laura Cox in her report considers the implications of the present voting system within the Committee, including the innovation of indicative votes.
42.In our July 2018 Report we described indicative votes as “only an interim measure”. We noted that a majority of members of the Committee wished to see full voting rights given to lay members.
43.However, we also acknowledged that an argument against doing this is the fear that it might open the work of the Committee to challenge in the courts on the grounds that it is not a properly constituted select committee entitled to the protection of Article IX of the Bill of Rights 1689. We commented that:
there is disagreement about how real this risk would be; some commentators have thought it exaggerated. Nonetheless, there would be a risk, and for that reasons it has been argued that full voting rights should only be conferred if primary legislation was passed to put the privileged status of Committee on Standards proceedings beyond doubt.
44.We accordingly recommended that the Government bring forward primary legislation to guarantee that the Committee’s proceedings would remain protected by parliamentary privilege following the extension of full voting rights to lay members. We have not yet heard from the Government whether they intend to do this. It is important to note that legislation is not required in order to confer voting rights on lay members, but to provide a precautionary safeguard in relation to privilege if those rights were conferred. The advice we have received is that, procedurally speaking, the House has the power, if it chooses, to confer voting rights on lay members simply by means of amendment to its Standing Orders.
45.If lay members were given full voting rights, they would in effect have a majority on the Committee because under standard select committee practice the Chair, who is an elected member, has only a casting vote. Thus the House would put the independent element on the Committee in the driving seat and would, in the words of our earlier report, “put beyond question that the Committee is independent of what might be called the ‘parliamentary establishment’”.
46.It is clear that the Cox report’s assessment of the deficiencies of the current voting arrangements has created a new situation. The Committee of Standards will continue to have a role to play in relation to complaints against Members in two areas: (1) in the short term, until a new system can be created, carrying out the duty placed on it by the House of hearing appeals in ICGS cases; and (2) in relation to complaints of breaches of the Code of Conduct in non-ICGS cases. In carrying out these responsibilities, we believe, in the light of the Cox report’s critique of our current decision-making, that the House needs to take decisive and immediate action to give lay members equal status on the Committee in terms of voting rights. We emphasise that this is without prejudice to any subsequent steps taken by the House to implement its response to the Cox report recommendations.
47.This does not mean that we consider the arguments previously advanced as to the existence of a risk to the Committee’s privileged status are without substance. As we stated in our July 2018 Report, there is a risk; it is a matter of judgement how significant the risk is. We note that Lord Nicholls, former Chair of the Joint Committee on Parliamentary Privilege, in written evidence to the Procedure Committee in 2011, addressing the question of whether a committee which included voting lay members would enjoy the same immunity from court review as one composed entirely of parliamentarians, concluded that:
“I am firmly of the view the answer to this question is yes. The deliberations and decisions of a standards and privileges committee to which lay members have been co-opted are as much an exercise by Parliament of its control over parliamentary affairs as those of a committee comprised entirely of parliamentarians. In both cases the members of the committee, parliamentarian and lay, are appointed by Parliament in exercise of its non-statutory powers. In both cases the functions of the committee are the same. In both cases the source and nature of the committee’s powers are the same. In both instances the committee remains a committee of the House. The rationale on which immunity from court process is accorded to a committee composed entirely of parliamentarians is equally apt, no less and no more, to a committee onto which Parliament has chosen to invite non-parliamentarians to serve, whether in a purely advisory capacity or in a voting capacity. The presence and participation of lay members does not change, or detract from, the essential nature of the function being exercised by the committee.”
48.We do not resile from our previously expressed view that it would be desirable for the Government to bring forward legislation to provide a cast-iron guarantee that free speech in the Committee is protected by parliamentary privilege. We hope the Government will accept our recommendation as this would secure the Committee’s position beyond doubt. However, in the fresh circumstances created by the Cox report, we believe that the advantages to the House of conferring voting rights immediately on lay members outweigh what we believe is the relatively small risk of a successful challenge in the courts to the Committee’s standing as a properly constituted select committee.
49.We recommend that the House should proceed without delay to amend its Standing Orders to confer full voting rights (and the right to move motions and amendments) on lay members of the Committee. If this is done, the provision for indicative votes can be abolished as no longer needed; but we recommend that the provision for any lay member to append an opinion to a Report be retained, as a reinforcement of the status of lay members within the system.
50.In our July 2018 report we discussed ways of enhancing the independence of the Parliamentary Commission for Standards. We commented as follows:
It will be essential for the public credibility of the new system [the ICGS] for the Commissioner both to be independent and be seen to be independent. Independence has always been a requirement of the post, safeguarded by protections such the requirement in Standing Order No. 150 (13) that the Commissioner may only be dismissed following a resolution of the House. The Committee has never sought to direct the Commissioner’s decision-making or to instruct her on whether to begin a particular investigation (save as required by existing protocols).
We are considering ways in which the Commissioner’s operational independence may be strengthened. In particular, we are considering proposals set out in the Commissioner’s most recent annual report that two existing provisions which might be held to qualify that independence should be reconsidered. These are the requirements for the Commissioner to consult the Committee before referring a matter to the Metropolitan Police, and before investigating allegations concerning events which occurred more than seven years earlier.
51.We set out the results of our consideration of these matters in the following two sections of this Report.
52.Paragraph 11 of Chapter 4 of the House’s Guide to the Rules relating to the Conduct of Members states that:
The Committee [on Standards] has made it clear that it would expect the Commissioner to consult it before exceptionally initiating an inquiry into a former Member or in respect of a matter which goes back more than seven years. The Committee would expect to authorise such inquiries only in exceptional circumstances.
53.In her most recent annual report, the Commissioner argues that:
I believe it is […] time to review the requirement for the Commissioner to consult the Committee on Standards before beginning inquiries into allegations concerning events which occurred more than seven years earlier. If exceptions to the general time-limit are to be permitted, confidence in the independence of the system might be better served by allowing the Commissioner to decide the exceptions. Ultimately, this is a matter for the House itself to determine but I look forward to working with the Committee to review this.
54.The treatment of non-recent allegations raises sensitive issues. Dame Laura addresses these at length in her report and sets out a proposed way forward. One of her three “fundamental recommendations” is that the ICGS should be amended, “so as to ensure that those House employees with complaints involving historical allegations can access the new Scheme”.
55.We do not here express a view on the best way of implementing Dame Laura’s recommendation: that will be a matter for wider discussion within the parliamentary community. However, we agree with the Commissioner’s view that the requirement for her to consult the Committee before beginning an inquiry relating to events more than seven years earlier is an unacceptable encroachment on her independence. We therefore recommend that this requirement should be abolished and that future editions of the Guide to the Rules should reflect this.
56.We believe there should be no exceptions to the general principle that the Committee does not seek to direct the Commissioner’s operational decision-making. For that reason, we also recommend that the requirement for her to consult the Committee before beginning an inquiry into a former Member should also be abolished and that future editions of the Guide to the Rules should reflect this also.
57.The Committee, together with the Parliamentary Commissioner for Standards, has a protocol with the Metropolitan Police to ensure that the administration of justice is not impeded by actions taken by the Committee or the Commissioner. This tripartite protocol was most recently renewed in 2013. Our predecessor Committee reported to the House on this at the time.
58.As we mentioned in paragraph 50 above, the Commissioner has raised with us one provision in the protocol which she considers is inappropriate. Paragraph 3.5 of the protocol states that “The Parliamentary Commissioner for Standards and the police will communicate information to each other in confidence”, except in two sets of circumstances, one of which is that “if the Parliamentary Commissioner considers that their investigations have uncovered evidence of possible criminality which should be referred to the police s/he will consult with the Committee on Standards”.
59.We agree with the Commissioner’s view that this provision is inappropriate, as infringing on her independence. We cannot conceive of circumstances in which, if she or any future Commissioner were to consider that they had uncovered evidence of possible criminality that ought to be drawn to the attention of the police, it would be proper for the Committee to impede her from doing so.
60.Both we and the Commissioner propose to discuss with the Metropolitan Police possible revisions to the 2013 protocol. These would include a redrafting of paragraph 3.5 to make clear that the Commissioner does not require the permission of the Committee to make a referral of a case to the police. A further option under consideration is the replacement of the present trilateral protocol with two bilateral protocols (Commissioner/police and Committee/police), the better to assert the Commissioner’s independence from the Committee.
61.In the period until a new agreement or agreements with the Metropolitan Police are in place, we wish to make clear that, notwithstanding the provision in paragraph 3.5 of the 2013 protocol, we do not regard the Commissioner as being under any obligation to seek the Committee’s approval before referring a case to the police on grounds of suspected criminality.
62.A final measure that we believe should be put into effect immediately is not directly connected with the recommendations in the Cox report, but is an overdue piece of modernisation to the House’s standards system.
63.At present complaints to the Commissioner that a Member is in breach of the Code of Conduct must be submitted in hard copy before the Commissioner can investigate them, although she is also able to investigate matters which come to her attention but are not the subject of a complaint. Paragraph 6(b) of Chapter 4 of the Guide to the Rules requires complaints to “be made in writing and signed”, and there is no provision made for submission by email.
64.We recommend abolition of the requirement that complaints against Members should be submitted in hard copy before the Commissioner can investigate them, and that future guidance should make clear that email submission is also perfectly acceptable. (Since complaints about harassment and bullying will follow a different route before they reach the Commissioner, this change will mainly benefit those who complain direct to the Commissioner about other matters.)
35 Cox report, paras 373–74
36 Biographical details of the current lay members are set out in an Annex to our July 2018 Report.
37 Committee on Standards, , Independent Complaints and Grievance Policy: Implementation (HC 1396), paras 28–36
38 Standing Order No. 149 (8)
39 Ibid., para 34
40 The Committee’s original proposal was that indicative votes should be held “before dividing on any motion not related to a draft Report”. This took account of the fact that lay members already had the right to append an opinion to a draft Report. However, the Standing Order change agreed to by the House on 19 July, with the support of the Committee, did not exclude motions related to a draft Report.
41 Cox report, paras 373–74
42 Committee on Standards, , Independent Complaints and Grievance Policy: Implementation (HC 1396), para 36
43 Procedure Committee, Sixth Report of Session 2010–12, Lay membership of the Committee on Standards and Privileges (HC 1606), published 7 November 2011, Ev 22–23
44 Parliamentary Commissioner for Standards, Annual Report 2017–18 (HC 1256), published 26 June 2018, para 56
45 Committee on Standards, Second Report of Session 2017–19, Independent Complaints and Grievance System: Implementation (HC 1396), paras 21–23.
46 House of Commons, The Code of Conduct, together with The Guide to the Rules relating to the conduct of Members: 2015 (HC 1076)
47 Parliamentary Commissioner for Standards, Annual Report 2017–18 (HC 1256), published 26 June 2018, para 56
48 Cox report, p 6
49 Committee on Standards, Seventh Report of Session 2013–14, The House of Commons Code of Conduct and the Criminal Law (HC 903), published 9 December 2013
50 Ibid., p 9
51 House of Commons, The Code of Conduct, together with The Guide to the Rules relating to the conduct of Members: 2015 (HC 1076)
Published: 10 December 2018