1.This report arises from an investigation that the Parliamentary Commissioner for Standards opened on her own initiative in October 2019 following media reports alleging that Rt Hon Owen Paterson MP had lobbied for two companies for which he was a paid consultant.
2.The Commissioner has supplied us with a memorandum relating to these matters, which we publish as an appendix to this report.1 Mr Paterson provided us with further written evidence, which we also publish as an appendix to this report. Mr Paterson also opted to give oral evidence; a transcript of that evidence is available on our website. We found this to be a very helpful session and are grateful to Mr Paterson for his attendance and explanations.
3.Full details of the Commissioner’s inquiry and her findings are set out in the memorandum. We summarise them briefly before setting out our own analysis and conclusions which take into account all the written and oral evidence from Mr Paterson.
4.Mr Paterson has made serious allegations about the process followed in his case. We assess these allegations in detail at the end of this report, and set out our reasons for rejecting them.
5.We are painfully conscious that Mr Paterson lost his wife in tragic circumstances in June 2020; and we wish to express our deepest sympathy to him for his loss. This last year must have been very distressing for him and we have taken these circumstances fully into account in considering Mr Paterson’s conduct during the period of the investigation. We have striven to ensure that Mr Paterson has had every opportunity to represent himself as fully as possible before the Committee, in person and in writing. We have extended deadlines at his request and we have accepted his request to be accompanied by his legal advisers and to make a formal opening statement to us.2 The allegations against him, which are the subject of the Commissioner’s memorandum, relate to his conduct between October 2016 and February 2020, before Mrs Paterson’s death. It is these allegations on which we are required to adjudicate, impartially, without fear or favour, and with a sole eye to the rules of the House and the requirements of natural justice.
6.Mr Paterson has been a paid consultant to Randox, a clinical diagnostics company, since August 2015. He has also been a paid consultant to Lynn’s Country Foods, a processor and distributor of meat products including ‘nitrite-free’ products, since December 2016. The relevant parts of his entry in the Register of Members’ interests were as follows:
From 1 August 2015 until further notice, Consultant to Randox Laboratories Ltd, a clinical diagnostics company, of 55 Diamond Road, Crumlin BT29 4QY. I consulted the Advisory Committee on Business Appointments about this role. From 20 April 2017, I expect to receive £8,333 a month for a monthly commitment of 16 hours. (Registered 07 October 2015; updated 26 April 2017)
From 14 December 2016, consultant to Lynn’s Country Foods Ltd, a processor and distributor of sausages in the United Kingdom, of Down Business Park, 46 Belfast Road, Downpatrick BT30 9UP. Until further notice I expect to receive £2,000 for 4 hrs every other month (24 hrs a year) to a total of £12,000 per annum. First payment received on 25 January 2017. (Registered 27 January 2017; updated 22 February 2017).3
7.Mr Paterson told the Commissioner that the only occasions on which he has engaged with Ministers or public officials on behalf of Randox and Lynn’s are those which were the subject of her investigation.4
8.The Commissioner found that Mr Paterson had breached the rule prohibiting paid advocacy, set out in paragraph 11 of the 2015 Code of Conduct for Members, in making three approaches to the Food Standards Agency relating to Randox and the testing of antibiotics in milk in November 2016 and November 2017; in making seven approaches to the Food Standards Agency relating to Lynn’s Country Foods in November 2017, January 2018 and July 2018; and in making four approaches to Ministers at the Department for International Development relating to Randox and blood testing technology in October 2016 and January 2017.
9.The Commissioner found that Mr Paterson had breached paragraph 13 of the 2015 Code of Conduct, on declarations of interest, by failing to declare his interest as a paid consultant to Lynn’s Country Foods in four emails to officials at the Food Standards Agency on 16 November 2016, 15 November 2017, 8 January 2018 and 17 January 2018.
10.The Commissioner found that Mr Paterson breached paragraph 15 of the 2015 Code of Conduct, on use of parliamentary facilities, by using his parliamentary office on 25 occasions for business meetings with his clients between October 2016 and February 2020; and in sending two letters, on 13 October 2016 and 16 January 2017, relating to his business interests, on House of Commons headed notepaper.
11.Mr Paterson has acknowledged that he breached the rules of the House in using House of Commons headed notepaper on two occasions for correspondence relating to his business interests, and has apologised to the Commissioner and to us for doing so. We are grateful to him for this.
12.Mr Paterson maintains that he has not breached the Code in any other respect.
13.In addition, Mr Paterson has raised a number of serious allegations relating to the process in this case.
14.We set out in detail below our analysis and conclusions in respect of each of the Commissioner’s findings, then turn to address Mr Paterson’s arguments relating to the process of investigation and adjudication in this case.
15.Paragraph 11 of the 2015 Code of Conduct provides that:
No Member shall act as a paid advocate in any proceeding of the House.
16.The paid advocacy rule incorporates the lobbying rules as set out in Chapter 3 of the Guide to the Rules. Paragraph 8 of Chapter 3 of the 2015 Guide to the Rules states:
The [lobbying] rules place the following restrictions on Members:
a) When initiating proceedings or approaches to Ministers, other Members or public officials. Subject to paragraph 10 below, Members must not engage in lobbying by initiating a proceeding or approach which seeks to confer, or would have the effect of conferring, any financial or material benefit on an identifiable person from whom or an identifiable organisation from which they, or a family member, have received, are receiving, or expect to receive outside reward or consideration, or on a registrable client of such a person or organisation.5[…]
17.Paragraph 9 of Chapter 3 of the 2015 Guide to the Rules provides:
Exceptionally, a Member may approach the responsible Minister or public official with evidence of a serious wrong or substantial injustice even if the resolution of any such wrong or injustice would have the incidental effect of conferring a financial or material benefit on an identifiable person from whom or an identifiable organisation from which the Member, or a member of his or her family, has received, is receiving or expects to receive, outside reward or remuneration (or on a registrable client of that person or organisation).6
18.Mr Paterson does not dispute that, during the events investigated by the Commissioner, he was in receipt of “outside reward or consideration” from Randox and from Lynn’s Country Foods. The rules of the House therefore restricted Mr Paterson from initiating approaches to Ministers, Members, or public officials which sought to confer, or would have the effect of conferring, a financial or material benefit on Randox or Lynn’s Country Foods, unless the “serious wrong” exemption in paragraph 9 applies.
19.We note that breach of paragraph 8(a) does not depend whether the lobbying is successful, nor on whether the Member was motivated, or motivated primarily, by the conferral of any benefit. Nor is paragraph 8(a) breached solely where the Member personally seeks to confer a benefit during an approach: it is sufficient that a Member initiates an approach which seeks to confer, or has the effect of conferring, a benefit.
20.The Guide to the Rules explains the purpose behind the lobbying rules as follows:
The rules on lobbying are intended to avoid the perception that outside individuals or organisations may reward Members, through payment or in other ways, in the expectation that their actions in the House will benefit that outside individual or organisation, even if they do not fall within the strict definition of paid advocacy. They prevent a Member initiating proceedings or approaches to Ministers, other Members or public officials which would confer a financial or material benefit on such a person or organisation. These rules are intended to provide the right balance between enabling Members to bring to bear their experience outside the House on matters of public policy while avoiding any suggestion that the parliamentary or policy agenda can be set by an outside individual or organisation making payments to a Member.7
21.The lobbying rules also provide for Members to release themselves from the restrictions, and thereby resolve any conflict of interest, by repaying any sums received within the relevant time limits:
A Member can free him or herself immediately of any restrictions due to a past benefit by repaying the full value of any benefit received from the outside person or organisation in the preceding six month period.
22.Mr Paterson seeks, in a number of instances, to rely upon the “serious wrong” exemption in paragraph 9 of Chapter 3 of the Guide, as set out above. The inclusion of this paragraph in the Guide was recommended to the House by the Committee on Standards and Privileges in 2012. In the report on proposed changes to the Guide, the Committee commented:
We have inserted a “whistle-blowing” provision to make clear that in exceptional cases, where there is some serious wrong or substantial injustice a Member may approach the responsible Minister or public official even if doing so might incidentally benefit a paying client.8
23.The serious wrong exemption is not a blanket exemption that can be invoked at will after the event. Four criteria are required for it to apply. Firstly, it can only be relied upon in an exceptional instance. Secondly, the whole approach—rather than just aspects of it—must fit the criteria. Thirdly, the benefit that might accrue to the third party must be entirely incidental and not integral to the approach. And fourthly, there must be evidence of a serious wrong or substantial injustice.9 The exemption is—and must be—a narrow exemption, not a wide loophole.
24.We address the question of whether Mr Paterson’s approaches were “exceptional” in paragraphs 108 to 111 below. Mr Paterson has also disputed the Commissioner’s interpretation of the “serious wrong” exemption. Mr Paterson states in his written evidence:
The Commissioner states my actions must be limited to providing evidence. The Rule does not state this. It enables an approach to be made “with evidence”, not limited to the provision of evidence. Any approach will include more than just the evidence for example:
(a) Context will need to be given so the importance and accuracy of the evidence can be known;
(b) The Member may be well placed to assist on resolution, using expertise in this regard;
(c) It matters that the disclosure is acted upon, it would be ridiculous if the Member could not follow up to make sure the issue was being or had been effectively addressed. This is what I did with milk for example.10
25.We agree with Mr Paterson that the exemption logically extends to closely related matters such as the context. But this cannot be taken to extend to the promotion of a firm or a product, or whether or not the firm or product might be of assistance in rectifying the alleged wrong or injustice. Nor can it extend to further approaches or follow-ups in person or in writing, particularly where these actions might promote a product or confer a benefit, or raising other matters, which seek to confer a benefit. That would be to drive a coach and horses through the exceptional criterion of the exemption. The exemption is not a broad ‘public interest’ test. Members are prohibited from initiating approaches or proceedings for reward or consideration except in very narrow circumstances, regardless of whether or not they consider the cause for which they are lobbying to be in the public interest.
26.Mr Paterson has also argued in correspondence to the Commissioner that the term “incidental” in paragraph 9 simply means “as a consequence of”.11 The Commissioner, in her analysis, has contrasted an incidental benefit with an intended outcome of the approach. Mr Paterson has therefore argued that the Commissioner has wrongly included an additional “financial test” when she has found that the benefit that the approach sought to confer or would have the effect of conferring, was not “incidental”.12
27.Mr Paterson is mistaken. On his reading of the word ‘incidental’, not only would the sentence have the same meaning as if ‘incidental’ were omitted altogether, but the exemption would apply even if the Member deliberately intended the approach to confer a financial or material benefit. That would be in open contradiction to the prohibition on initiating approaches or proceedings in return for reward or consideration. It would involve a Member knowingly pursuing a private interest while claiming an exemption in the public interest. We consider that our predecessor Committee intended that the serious wrong exemption would only apply if the relationship between the resolution of the wrong and the benefit conferred was ‘merely’ incidental, that is, if it would be a mere side-effect of the resolution, rather than integral to the approach.
28.It is, in our view, a moot point whether the public policy matters to which Mr Paterson has referred in this case—antibiotics in milk, nitrites in bacon, and calibration of laboratory equipment—are “serious wrongs” or “substantial injustices”. This is not, however, to say that applying such a test might not be necessary in a future case which sought to rely on this exemption. We accept at face value that Mr Paterson thinks they are. The question we therefore have to consider is whether the relevant approaches fell wholly within the serious wrong exemption, namely, whether Mr Paterson confined himself in his approaches to providing evidence of a serious wrong or substantial injustice, and whether his approaches would only incidentally benefit the organisation for which he was a consultant.
29.In oral evidence, Mr Paterson argued that, when it was suggested to him there was a conflict of interest between his paid role and his approaches to Ministers and public officials which was prohibited by the rules, this implied that Members should not have paid outside interests:
The extension of your view is that we should have no outside interests at all. That is a perfectly logical conclusion, but that is not the current position. The current position is you are allowed to be paid by an outside interest as long as you adhere to the rules. I adhered to paragraph 9. I am absolutely clear about that.13
Mr Paterson made a similar point in relation to his approaches to the Department for International Development in relation to Randox and blood testing:
What is good about it—this is why I believe people should have outside interests—is that I was made aware of these technologies, which people working hard in Whitehall offices are not, so I brought new ideas to the Government.14
30.Mr Paterson is correct that the lobbying rules are not designed to prevent Members from holding outside interests and from being able to contribute on the basis of their outside experience and expertise. The primary way in which this is facilitated is through the provision for a Member “participating” in proceedings or approaches, which is subject to a weaker “exclusive” benefit test and a requirement that proceedings or approaches are not initiated by the person or organisation paying the Member.15 So, for example, a Member may, under the rules, make a speech in a debate, make an intervention in debate, participate in an approach to a Minister, or ask a question in a select committee hearing which might confer a benefit on a paying client, so long as it does not seek to confer a benefit exclusively on the person or organisation paying the Member (and the proceeding or approach is not initiated by the Member or the client).16 What is more strictly prohibited under the rules is initiation—of both proceedings and approaches, to avoid any perception that a paying client is able to set the parliamentary or policy agenda.
31.Mr Paterson has said that he was made aware of concerns about the level of antibiotics in samples of supermarket milk analysed by Randox in November 2016. Mr Paterson called the then Deputy Chair of the Food Standards Agency (FSA) on 7 November and arranged an urgent meeting with the Chair and officials at the FSA and Randox on 15 November 2016. Mr Paterson met the FSA again on 15 November 2017. Mr Paterson also corresponded with the FSA Chair and officials at this time.
32.The Commissioner found on the evidence presented to her that the meeting on 15 November 2016 was focussed solely on alerting the FSA to the test results, and that the approach was not therefore seeking to confer, nor would have the effect of conferring, a benefit on Randox. However, the Commissioner found that Mr Paterson’s email following the 15 November meeting, on 16 November 2016, his meeting on 15 November 2017 and his email of 15 November 2017 breached paragraph 11 of the 2015 Code of Conduct because they sought to confer, or had the effect of conferring, a benefit on Randox, and that the serious wrong exemption did not apply.
33.Mr Paterson does not dispute that he initiated these approaches. Mr Paterson argues that (a) no benefit could have been conferred on Randox in these approaches and (b) that he was acting within the serious wrong exemption.
34.Mr Paterson’s email to FSA officials on 16 November 2016 read as follows:
Many thanks for reacting so quickly to my call to [name] last week and agreeing to meet key technicians from Randox Laboratories. It was great to meet you all again. We rapidly agreed that what Randox’s superior technology has uncovered is shocking and potentially incredibly damaging to the UK Dairy Industry. It is not good that illegal products have not been detected by the current testing regime in retail milk. It is also bad that the current systems miss certain illegal products which Randox can detect. You agreed to begin an enhanced programme of testing for the illegal substances which Randox have discovered. We agreed Randox should test the same samples in parallel so results can be compared. You were interested in using the Randox technology within the FSA. You offered to help with ISO 7025 accreditation at a suitable laboratory. Once established the application of the technology could be discussed not just within the FSA but across the whole dairy industry. This could lead to a much rapider and more thorough testing regime of huge value to U.K. Dairy promotion at home and abroad in the future. You suggested discussing the revelations on antibiotics with [name redacted] the Chief Vet. In the meantime, although none of us could have reacted quicker to the information I was given 10 days ago by Randox, we agreed that you should agree defensive lines on immediately increasing testing should the news get out. Looking further ahead, [one of your FSA colleagues] mentioned the issue of mycotoxins in maize and I have long been worried about the potentially explosive danger of campylobacter in chickens. It would be good if he could liaise with Randox and discuss further how their latest technologies might help on grain and meat. Thank you once again for agreeing to meet so quickly and for reacting in such a constructive manner to what is very unwelcome news for us all. Let’s keep in touch and plan to meet again in the New Year.17
35.The Commissioner found that Mr Paterson went beyond providing evidence of a serious wrong, in going on in his email of 16 November 2016 to promote Randox products and seek benefits for Randox.18 The Commissioner stated that those benefits included assistance with accreditation for the FSA to use Randox technology, and opportunities for unrelated testing on grain and meat.19
36.The former Deputy Chair of the FSA stated that Randox’s testing technology was relatively new, and that accreditation would have been “required to verify the findings before taking action”.20 Mr Paterson has stated in evidence to the Commissioner that “having an accreditation would permit the FSA to accept Randox test results and that would benefit the FSA not Randox, as the FSA doesn’t test milk.”21
37.In his interview with the Commissioner, Mr Paterson clarified:
OP: I mean, it would be a benefit to British consumers in the dairy industry to have a more modern technology.
PCS: Would it be a benefit to the company to be accredited?
OP: Only if the technology was taken up.22
38.Mr Paterson described in his email to the Chair of the FSA that, once the Randox technology had been accredited and “established”, application of it “could be discussed not just within the FSA but across the whole dairy industry”.23
39.We accept Mr Paterson’s argument that the immediate benefit of accreditation would have been to verify the test results Randox had produced. However, as Mr Paterson appears to acknowledge in his interview with the Commissioner and in his email to the Chair of the FSA, there would nevertheless also be greater future commercial opportunities for Randox as a supplier of an accredited technology.
40.Mr Paterson told us in written and oral evidence that the reference to testing on grain and meat in his email was included as the FSA’s Chief Scientific Officer raised the issue in the meeting on 15 November 2016. Mr Paterson told us in oral evidence:
Mr Paterson: That was raised by Professor Poppy, who was very interested in the technology. He was interested in mycotoxins.
Andy Carter: Your email, as an MP being paid, to somebody who was in the FSA—
Mr Paterson: No, but he raised it. I was answering his question. I didn’t raise that. As the chief scientist, he was very interested in this new technology and said could it apply to—I think he actually talked about chickens as well. […] That, on the rules, I am clear about: they raised that with me. I cannot not answer it.24
41.The Commissioner found that, irrespective of whether the Chief Scientific Officer raised the issue in the meeting, Mr Paterson raised the issue in a separate approach. We agree. Even if an FSA official had raised the issue of grain and meat in the meeting, Mr Paterson was not permitted under the rules to seek to promote other Randox technologies in a separate approach by email.
42.Mr Paterson called a further meeting with the FSA a year later, on 15 November 2017, because he considered that the FSA had not taken adequate action. Mr Paterson maintains he was acting within the serious wrong exemption in following up his original disclosure. Mr Paterson sent an email following the meeting as follows:
We discussed illegal substances which are still being detected in retail milk by Randox’s equipment at levels which are too low for other current testing technologies to detect. Several large commercial dairies are extending their use of Randox testing. It would be great if you could call a meeting with the VMD [Veterinary Medicines Directorate] to ensure that Government agencies do not fall behind. I look forward to hearing from you. Many thanks again.25
43.We asked Mr Paterson in oral evidence what he meant by the phrase “call a meeting […] to ensure that Government agencies do not fall behind”. Mr Paterson responded:
[…] The FSA was sleepy and did not recognise the advantage of this technology. That is what happened in the course of the year—the commercial dairies did move ahead. I am obviously talking to the dairies on my patch the whole time. It was really important that the top Government agency realised that there was this equipment, which could go right down to one or two parts per billion. […]
NML [National Milk Laboratories] was already using the equipment. What we wanted was for the FSA to pay attention to their results. A couple of years before, they were doing it. I think Ben Bartlett says in his evidence that they are doing about 70 or 80 Randox tests a week, as opposed to about 100,000 with a Delvotest, which is still going on. What I wanted to do was make sure they did use that information. That is what I mean by falling behind.26
44.We are not convinced that the phrase “do not fall behind” in testing can reasonably be taken to mean the same as “paying attention to” when it is contrasted with commercial dairies “extending their use” of Randox testing. Regardless, as the Commissioner noted, “if government agencies started to use Randox technology for testing other food substances, or organisations already using Randox technology increase their dependence on it, this could help with expanding Randox’s markets and customer base”.27 The Commissioner accepts that “commercial uptake […] would not immediately have followed from a single meeting with the VMD”, but that it is “not necessary for these benefits to have materialised for me to make a finding of paid advocacy”.28
45.The Commissioner has concluded that “paragraph 9 does not provide Members with a blanket exception or override the rule on paid advocacy”, and that “Mr Paterson did not confine himself to raising the serious wrong which Randox had discovered”.29
46.The Commissioner has accepted, as we do, that Mr Paterson’s initial approaches to the Food Standards Agency in respect of milk testing did not seek to confer a benefit. The Commissioner therefore found that Mr Paterson’s call to the then Deputy Chair of the FSA on 7 November 2016 and the initial meeting on 15 November 2016 were not in breach of the rules.
47.The Commissioner found, however, that Mr Paterson went beyond presenting evidence of a serious wrong in his approaches following the initial meeting. We agree. As evidenced in his own contemporary emails, Mr Paterson’s further approaches sought to promote Randox products, including their ‘superior technology’ and thereby sought to confer benefits on Randox. There may have been no financial benefit to Randox arising immediately from his approaches, but Mr Paterson sought assistance with accreditation for Randox’s technology; he promoted other, unrelated, Randox technologies; and he sought to promote Randox testing by government agencies. These were all attempts to confer a benefit on Randox, to whom he was a paid consultant.
48.We therefore agree with the Commissioner that Mr Paterson breached paragraph 11 of the 2015 Code of Conduct, on paid advocacy, in his email of 16 November 2016, his meeting of 15 November 2017 and his email of 15 November 2017.
49.Mr Paterson contacted the Food Standards Agency and met with FSA representatives and with Lynn’s Country Foods on 15 November 2017, after which he sent a follow-up an email to FSA officials. Mr Paterson says that he was approaching the FSA with a serious wrong, namely, that a global food producer was acting in breach of EU law by mislabelling a product.
50.The Commissioner found that Mr Paterson breached the paid advocacy rule by initiating approaches to officials at the Food Standards Agency in the meeting of 15 November 2017 and his email of 15 November 2017.
51.The Commissioner has explained why she considers that Mr Paterson’s approach was initiated by him:
The meeting on 15 November 2017 was arranged at Mr Paterson’s request. Mr Paterson then sent a follow up email on his own initiative. Therefore, I find that this meeting and Mr Paterson’s follow up email were approaches initiated by Mr Paterson. Mr Paterson’s position is that the approach to the FSA was initiated by Lynn’s because of their concerns about the global producer’s product. I accept that Lynn’s had approached the FSA NI in February 2017, but I view the contact by Mr Paterson in November 2017 as a fresh approach for two reasons. Firstly, nine months had passed since the original approach by Lynn’s and secondly Mr Paterson approached the FSA in London and not (as Lynn’s had) the FSA NI.30
52.We agree with the Commissioner that this should be considered as a separate approach by Mr Paterson. We also note that, even if the Commissioner had found that Mr Paterson had participated in an approach by Lynn’s, this would be still be prohibited under paragraph 8(b) of Chapter 3 of the Guide, which provides that:
When participating in proceedings or approaches to Ministers, other Members or public officials […] Members may lobby by participating in such proceedings or approaches which would confer a financial or material benefit on the […] identifiable organisation from which they, or a family member, have received, are receiving or expect to receive outside reward or consideration […] provided that that person or organisation (or their client) has not initiated the event.
Under Mr Paterson’s interpretation, the approach would still have been initiated by the organisation paying him, and so Mr Paterson would not have been permitted to participate in their approach. The very fact, however, that Mr Paterson was seeking to secure a meeting that Lynn’s had already failed to secure suggests that he was seeking to confer a benefit—namely a meeting with senior public officials—on Lynn’s.
53.Mr Paterson maintains that he was approaching the FSA with evidence of a serious wrong, and that his approaches therefore fell under the exemption in paragraph 9 of Chapter 3 of the Guide to the Rules:
Kerry Foods, which is one of the world’s largest producers of processed meats and based in Kerry in the Republic of Ireland, launched an “all naturally cured” ham that was said to be chemical free. It was tested and found to contain a concealed, prohibited by law, carcinogenic chemical, namely nitrite extracted from vegetables (celery).31
I did […] approach the FSA with evidence of the serious harm this product would cause and as a result of my intervention the product was made safe.32
54.Mr Paterson also maintains that Lynn’s could not have benefited since its product was not a direct competitor.33 We address this below in considering the question of whether any benefit to Lynn’s was incidental.
55.The Commissioner found that Lynn’s stood to benefit from Mr Paterson’s approach:
Had these approaches been successful, a competitor product would have been removed from the UK market, or relabelled, with consumer choice and sales of “clean label” bacon being directed towards Lynn’s new product. It is not necessary for these benefits to have materialised for me to make a finding of paid advocacy. The paid advocacy rule is clear that seeking to confer a financial or material benefit amounts to a breach of the rule. The financial or material benefit does not need to be achieved for a breach to have occurred.34
56.Mr Paterson has stated, supported by witness statements, that he was motivated by what he considered to be a serious wrong.35 However, Mr Paterson’s own subjective motivations are not the test under the lobbying rules. Rather, the tests are whether Mr Paterson initiated an approach which sought to confer, or would have the effect of conferring, a benefit on Lynn’s; and whether Mr Paterson was approaching the FSA with evidence of a serious wrong, the resolution of which would only incidentally benefit Lynn’s.
57.Mr Paterson stated in his written evidence that the product about which he approached the FSA was not a competitor to Lynn’s own product:
This was of no benefit whatsoever to Lynn’s whose primary product range is bacon and sausages. The Commissioner, without any evidence whatsoever, asserts that I was seeking to clear a competitor’s product to benefit Lynn’s. Not only is there no evidence of this, it is with the greatest respect a figment of the Commissioner’s imagination and not based on any facts whatsoever.36
58.In oral evidence before us, however, Mr Paterson conceded that Kerry’s was a competitor of Lynn’s:
Mr Paterson: No, Lynn’s were developing a bacon at the time, as were several other companies around Europe. Kerry’s product was ham, and Kerry’s has continued to sell the ham—it is still available. It was not knocking a competitor out of the market at all. It was just making sure that the competitor properly manufactured and marketed the product.
Chair: So you’re saying that it was a competitor? Because your argument is that it was not a competitor.
Mr Paterson: Kerry’s is a great big meat company, as are Nestlé and others. They are in the world of selling meat.
Chair: So they are a competitor. You accept that they are a competitor?
Mr Paterson: Again, you’d have to ask Lynn’s exactly which products were being sold by which company. At the time, I was concerned about the carcinogenic ham being targeted at young children. The formula was changed and the marketing was changed. At the time, Lynn’s were developing a nitrite-free bacon, which is a completely separate product.37
59.In his later email to the FSA on 17 January 2018, Mr Paterson also appears to describe the Lynn’s product—not just Lynn’s as a firm—as a competitor to the Kerry Foods product, by virtue of both being marketed as ‘natural’ or ‘nitrite-free’:
[…] Other processors in the UK are also carrying out their own trials on products made with Vegetable derived Nitrites as a way to compete with the Finnebrogue ‘Made without Nitrite’ products. Professor [name redacted] highlighted how, in the US and Canada, customers created a backlash when they perceived they were being conned by this nitrite technology and I fear that this could also happen in the UK.
Any backlash will dilute customer confidence further. It will actually destroy the potential health benefits that the Finnebrogue products and similar future competitive products could bring to the health of the nation by removing nitrites, with their long-associated health concerns.38
60.The Technical Director of Lynn’s, in his witness statement, refers to Lynn’s concerns that consumers who were seeking nitrite free products might be “misled” into buying the Kerry’s product:
Lynn’s were extremely concerned that this product should be allowed to be marketed as “all natural” and without nitrites, when this was not at all the case. Not only were consumers being deliberately misled as to the ingredients of the product, but consumers actively trying to seek out a nitrite free product would also be misled into buying this product.39
This suggests that Lynn’s perceived that there was a distinct market for nitrite-free products.
61.In his email of 15 November 2017, Mr Paterson also sought to secure a letter from the FSA to Lynn’s or the trade press stating that the Food Safety Authority of Ireland had required Kerry Foods to relabel or reformulate their product:
You would write to Finnebrogue [a company owned by Lynn’s Country Foods] or the trade press confirming the above action. This letter could then be used to warn the multiples and other suppliers not to use this form of additive/technology in the future.40
This additional request, in particular the reference to promotion to the trade press, suggests that the approach was not solely concerned with the reformulation or relabelling of a product, but also with placing Lynn’s at an advantage in relation to their competitor.
62.The serious wrong exemption requires that any benefit conferred is only “incidental” to the resolution of a serious wrong. Mr Paterson may have been approaching the Food Standards Agency with evidence of what he considered to be a serious wrong, but his clients, Lynn’s, did stand to benefit directly from his approach. Mr Paterson has conceded that Kerry Foods was a competitor to Lynn’s. Mr Paterson sought to have one of Lynn’s competitors forced to re-label their product so as not to compete with Lynn’s own nitrite free products. He asked for this fact to be promoted in the press. This benefit cannot properly be regarded as incidental. Rather, the benefit to Lynn’s was integral to the approach.
63.We therefore agree with the Commissioner that Mr Paterson breached paragraph 11 of the 2015 Code of Conduct, on paid advocacy, in his approaches to officials at the Food Standards Agency in his meeting of 15 November 2017 and his email of 15 November 2017.
64.Mr Paterson called the Chair of the Food Standards Agency on 8 January 2018 regarding the “Prosur” ingredient in Lynn’s own product, Finnebrogue bacon,41 and followed up with an email that same day, to arrange a meeting on 15 January 2018, which he followed up with an email on 17 January 2018. Mr Paterson also arranged a further meeting on 9 July 2018 which he followed up with an email on 11 July 2018. We have considered these approaches separately, since they appear to us to be dealing with a separate issue.
65.The Commissioner found that Mr Paterson breached the paid advocacy rule by initiating approaches to public officials at the Food Standards Agency on behalf of Lynn’s Country Foods in his phone call and email on 8 January 2018, his meeting on 15 January 2018, his email of 17 January 2018, and his meeting of 9 July 2018.
66.Mr Paterson maintains that he did not breach the paid advocacy rule in his contacts with the FSA in January 2018 and July 2018 which related to the “Prosur” ingredient in Lynn’s own product because he claims this issue was initially raised by the FSA. Mr Paterson told us in oral evidence:
That was raised by the FSA, and the rules are absolutely clear: if a public authority raises an issue, you are allowed to discuss it, and I was involved in the discussions.42
Mr Paterson also said that:
All my dealings with the FSA were to do with stopping the Kerry’s product being sold and getting the FSA to talk to the Irish authorities to get the formula changed and the marketing changed, which is effectively done. […] We then got snarled up in all this stuff on the formulation and the misunderstanding about what Lynn’s were actually doing.43
67.We agree with Mr Paterson that the rules do not prohibit a Member participating in a discussion where the Member is approached by someone else. However, we cannot accept the interpretation that the FSA had “raised the issue” with Mr Paterson, and that Mr Paterson was simply “involved” in the discussions. Mr Paterson’s own email to the Chair of the FSA on 8 January 2018 read as follows:
Many thanks for your time on the phone just now. We agreed that we need to meet urgently with you and your technical team to discuss the FSA’s interpretation of ‘Nitrite Free’ following [the Professor of Food Safety’s] letter to me dated 3.1.18 […] in response to [a FSA official’s] letter to [Lynn’s’ CEO] dated 24 November 17. This is even more urgent now that you have received an RASFF notification from Ireland and France about the Prosur product. This seems extraordinary as products using these Prosur natural ingredients have been approved and sold in France for over a year. Having invested £14m in a new plant and having taken on 100 new employees, [Lynn’s CEO] is extremely concerned about what looks to be a concerted attack on his Nitrite Free product (which could reduce the 6500 annual deaths from colorectal cancer) by producers of processed meats which contain nitrites but who are deliberately and misleadingly selling them to the public as nitrite free […] My office will contact to set this up as rapidly as possible.44
68.Mr Paterson’s email suggests that his telephone call was prompted, in large part, by a Rapid Alert System for Food and Feed (RASFF) notification about the ingredient in Lynn’s own product. The RASFF notification system is operated by the European Commission to exchange information on hazards in food. Such a notification could have resulted in regulatory action against, and reputational damage for, Lynn’s. We note that Mr Paterson’s email also focussed on the “attack” on Lynn’s product and the need to protect Lynn’s recent investment.
69.Mr Paterson’s approaches appear initially to have averted regulatory action. His email to the Chair of the FSA on 11 July 2018, sent following the meeting on 9 July 2018, stated:
[…] We had a very constructive discussion and your proposal to write to all the other European agencies who have approved products using the Prosur process seems a good way forward. I would be grateful if you could send me a copy of the email that you are sending out. In the meantime, you confirmed that you had not so far referred the Finnebrogue bacon to the European agency.45
70.That Mr Paterson’s approach in January 2018 was in response primarily to the RASFF notification is supported by the statement made by the Technical Director of Lynn’s, which states that:
Following this [November 2017] meeting, in early January 2018, we became aware of a separate issue which had arisen. A RASFF (Rapid Alert System for Food and Feed) notice was made against the Prosur product which is the product which Lynn’s were using in our own nitrite free product. […] Mr Paterson made contact with [Chair] of the FSA on 8 January 2018 to facilitate a meeting regarding this new issue being raised by the FSA.46
This statement also confirms that the RASFF notification was not raised in a meeting, but rather occurred in “early January 2018”, following the November 2017 meeting.
71.The statement by the Legal Adviser to Lynn’s Country Foods confirms this timeline of events, and stated his understanding that Mr Paterson’s email on 8 January 2018 was about both the Prosur ingredient and nitrites generally:
In early January 2018, our office received a notification from LCF that a formal interagency notice had been filed by the FSAI with FSA relating to the Prosur product. From recollection, it was at this time that I had my first direct dealings with Owen Paterson in relation to these matters. […]
I recall that on 10 January 2018 I had been copied into an email that Mr Paterson had sent to [FSA Chair] on 8 January 2018, requesting an urgent meeting with the FSA in relation to LCF’s general concerns about nitrite levels in traditionally manufactured processed meats and separately about the enquiry into the Prosur ingredients.47
72.We asked Mr Paterson during oral evidence when he first heard about the RASFF notification. Mr Paterson responded that he could not remember when the RASFF notification regarding Lynn’s own ingredient was raised, and invited us instead to consult the witness evidence he had provided.48
73.The fact that the FSA had previously raised with Lynn’s, in a meeting at which Mr Paterson was present, the issue of the ingredients in Lynn’s own product does not mean that any future contact made independently by Mr Paterson can be considered as the FSA “raising the issue”. Mr Paterson called and emailed the Chair of the FSA on 8 January 2018 on his own initiative, to call an urgent meeting. The most reasonable conclusion, on the basis of Mr Paterson’s email, and the statement provided by Lynn’s Technical Director, is that Mr Paterson was prompted to do so having learned of the RASFF notification relating to an ingredient used in Lynn’s own product. This specific issue could not have been raised in meetings with Mr Paterson, because Lynn’s only learned of the notification in early January 2018. Nor can the RASFF notification itself reasonably be considered as the FSA raising an issue with Mr Paterson personally.
74.Regardless of how the issue of the Prosur ingredient became linked with the issue of the alleged mislabelling of the Kerry Foods product, the most obvious interpretation of Mr Paterson’s email of 8 January 2018, and the further approaches that followed from it, was that Mr Paterson was primarily approaching the Food Standards Agency to attempt to avert regulatory action against Lynn’s arising from the RASFF notification in early January 2018. The FSA did not raise this issue with Mr Paterson. Mr Paterson raised it with them.
75.We therefore agree with the Commissioner that Mr Paterson breached paragraph 11 of the 2015 Code of Conduct, on paid advocacy, in his approaches to officials at the Food Standards Agency in his phone call on 8 January 2018, his email of 8 January 2018, his meeting on 15 January 2018, his email of 17 January 2018 and his meeting of 9 July 2018.
76.Randox had written to the then Secretary of State for International Development, Rt Hon Priti Patel MP, on 28 July 2018 about international aid programmes and improving the reliability of laboratory results for blood testing, and seeking a meeting with Ministers.49 Mr Paterson was aware of the letter, and told the Commissioner that he met the Secretary of State by chance on 12 October 2016, and wrote to her the next day requesting a meeting with him and Randox representatives. Mr Paterson subsequently met with a Randox Senior Manager and the Minister of State for International Development, Rory Stewart MP, on 12 January 2017, and sent a letter to the Minister following the meeting on 17 January 2017.50
77.The Commissioner found that Mr Paterson breached the paid advocacy rule by initiating approaches to Ministers at the Department for International Development on behalf of Randox in his approach to the Secretary of State on 12 October 2016, his letter on 13 October 2016, his meeting on 12 January 2017 and his letter on 17 January 2017.
78.Mr Paterson maintains that all his approaches to DfID Ministers fell within the serious wrong exemption.
79.Mr Paterson’s letter to the Secretary of State on 13 October 2016 was written on House of Commons headed notepaper and read as follows:
Following our brief chat last night, I previously mentioned to you that I work with Randox Laboratories in Northern Ireland. They are convinced that their state of the art technologies could deliver dramatically better health outcomes with the same funds which DfID currently grant to health schemes in developing countries. [Two of my colleagues at Randox] will be in London on Monday 24th October and it would be brilliant if you could find time to meet me with them. Look forward to hearing from you.51
80.Mr Paterson claims that his approach to the Secretary of State on 12 October 2016 was a participation in Randox’s approach in their letter of 28 July, which he followed up as soon as practicable given the summer parliamentary recess.52 The Commissioner found that Mr Paterson initiated a new approach. As when Mr Paterson sought to secure a meeting with the FSA that Lynn’s had already failed to secure (see paragraph 52 above), one benefit that Randox was seeking in writing to the Secretary of State was to make a presentation to Ministers, which they had failed to secure. This again suggests that Mr Paterson was seeking to confer a benefit on Randox. However, even if we found that Mr Paterson was participating in Randox’s previous approach, this would still be prohibited under paragraph 8(b) of Chapter 3 of the Guide to the Rules, as Randox initiated an approach through their letter in July 2016.53 We will therefore consider solely whether Mr Paterson’s approaches to Ministers in the Department for International Development fell within the serious wrong exemption.
81.Mr Paterson has argued that the Commissioner’s finding has been made on the basis of a “caricature” of the process by which a Government contract would be awarded:
There is a sort of […] caricature that a pretty stupid Minister sits behind a desk with a large order book, and ultimately a cheque book, with weak civil servants who do not stand up to him, and an old pal comes in, who is being paid, and he signs off an order. That is the sort of spirit of what has been laid out—that just does not happen.54
82.We note that the Commissioner states in her memorandum that she agrees that “Mr Paterson’s approaches would not have resulted in Randox receiving public funds directly”.55 The Commissioner also states that she has not had to consider whether or not Randox did actually receive a financial benefit, since the benefit does not need to materialise in order for an approach to breach the rules.56 We accept that Randox did not secure a contract with the Department as a result of Mr Paterson’s approaches.
83.The Commissioner found that Randox nevertheless secured other benefits by Mr Paterson’s approaches, including the opportunity to present to Ministers which they had been unable to obtain through their letter of July 2016; contacts with in-country health advisers and the King Salman Relief Fund; and information about Tier Two providers.57
84.In evidence to the Commissioner, Mr Paterson stated that:
DflD explicitly requested that Members of Parliament introduce companies with new technologies.58
85.In oral evidence before us, Mr Paterson suggested to us that his meeting was in response to this request:
Three witnesses present at the meeting—Rory Stewart, Mark Campbell and myself—gave incontrovertible evidence that this meeting was about presenting a new technology, as requested by the Secretary of State.59
86.We repeatedly asked Mr Paterson in oral evidence how and when he had become aware of this request, and the form in which it was made. Mr Paterson was unable to tell us. He instead referred only to the witness statement made by the then Secretary of State and suggested we ask her.60 The then Secretary of State’s statement did not state that she had made an explicit request, for example, through an email. It stated only: “I encouraged MPs to bring new suppliers, technologies, and charities to the attention of the Department in order to diversify and deliver better value for money and better outcomes”.61 More pertinently, however, the then Secretary of State could not reasonably be expected to tell us how and when Mr Paterson became aware of any such request.
87.In any event, we consider that a Member would not be permitted to “introduce” a company in response to a generic request if in doing so they would breach the lobbying rules because they were a paid consultant to that company.
88.The former Minister of State at the Department for International Development, Rory Stewart MP, with whom Mr Paterson met on 12 January 2017, has said in a witness statement that, in the meeting, “the arguments made for the equipment by the company were about its technical strengths and advantages for international development” but that Mr Paterson “was not in my view conducting himself in that particular meeting as a paid advocate for that product”.62
89.Mr Paterson states that the Commissioner has “rejected without challenge or explanation” Mr Stewart’s evidence, which he argues “confirms no paid advocacy took place at the meeting”.63
90.The test under the rules, however, is not whether Mr Paterson was, or appeared to be, a “paid advocate for [a] product”, but rather whether Mr Paterson initiated an approach that sought to confer, or would have the effect of conferring, a benefit on Randox. Mr Stewart says in his statement that Randox representatives promoted their product’s “technical strengths and advantages for international development”.64 Mr Paterson would not need personally to have sought to confer a benefit on Randox during a meeting in order to have breached the paid advocacy rule; it is sufficient that he initiated an approach which would have the effect of conferring a benefit. To put it bluntly, it is not only a breach of the paid advocacy rule for a Member to use their access to Ministers to lobby for paying clients: it is also a breach for a Member to use their access to Ministers to secure a meeting at which somebody else lobbies for the Member’s paying client.
91.Mr Stewart also claims that “officials would not have permitted the meeting to continue if it breach [sic] the rules on Conduct of Members of the House”.65 We cannot accept this. Officials at the Department for International Development could not be expected to know the detail of Mr Paterson’s financial arrangements, or the detailed provisions of the House of Commons Code and Guide (which they are not responsible for enforcing), in order to advise on whether Mr Paterson was breaching the lobbying rules.
92.Mr Paterson has stated in his evidence that the meeting with the Minister of State was not a “selling meeting” because there would have been a separate procurement process in order to secure a contract.66 The Senior Manager at Randox has made the same argument in his witness statement:
Flagging an issue to the UK Government and selling something are not the same. I fully understand that the UK Government is an extremely sophisticated organisation with very well-developed procurement procedures. If the UK Government considered that what was being said was accurate and wished to remedy it, then such decisions would be formally recorded, and an open and transparent procurement process would follow.67
93.The Commissioner did not find that Mr Paterson engaged in a “selling meeting”, in the sense that the meeting sought to replace or circumvent a procurement process, and neither do we. The Commissioner has outlined the benefits that Randox secured through Mr Paterson’s approaches. The initial introduction to a product may not immediately or rapidly lead to its procurement, but the mere introduction confers a benefit not available to all. It is clear that for a company that might wish in future to go through a procurement process, it could only be advantageous to first promote the benefits of a technology among Ministers and officials and gain contacts among the Department’s stakeholders.
94.Mr Paterson maintains that all his approaches to the Department fall under the serious wrong exemption in paragraph 9 of Chapter 3 of the Guide (see paragraphs 17 to 27 above).
95.Throughout the Commissioner’s investigation, and in oral evidence before us, Mr Paterson referred to his approaches on some occasions as bringing evidence of a serious wrong; but on other occasions as drawing the Department’s attention to the benefits of new technology. In oral evidence, Mr Paterson said:
This was not a selling meeting; it was a meeting to bring to the attention of the Department the benefits of the technology.68
This was obviously going to be a much longer process; this was introducing an idea. And [Senior Manager, Randox] is very clear about that that—this was selling an idea. And Priti, when she gave evidence to us in her statement said this would be farmed out for a year or two.69
[…] The idea is to get the technology into the minds of the officials, and then it would be over to them. It was absolutely clear that the Minister was not going to sign this off; it would have gone off for trial.70
These characterisations do not appear to us to be compatible with a “whistleblowing” exemption which allows Members, in certain circumstances, to approach a responsible Minister with evidence of a serious wrong or substantial injustice.
96.The Commissioner has noted in her memorandum that she asked Mr Paterson what evidence he provided to the Department, and concluded that he did not provide what could reasonably be described as “evidence”:
Mr Paterson stated he “provided the evidence that a failure to calibrate laboratory equipment renders health outcomes unreliable, causes human suffering and loss of life and wastes the resources UK taxpayers are providing”, and referred to the earlier letter from Randox. This, however, is not evidence, but assertions. In fact, the only material Mr Paterson provided to DfID was a press release relating to a project involving Randox in the Cameroon.71
97.Mr Paterson described, in oral evidence, the serious wrong he claimed to be addressing as follows:
I think that it was wrong that the health outcomes were so bad that some of them could have been fatal, and I think that it was a serious injustice to British taxpayers, who put this generously huge amount of money into health programmes that could be so much more effective.72
98.Were we to accept and adopt Mr Paterson’s reasoning, any Member could approach a Minister or official on behalf of a paying client as long as this was accompanied by a claim of a taxpayer saving or a solution to a public policy issue. This cannot be the intention behind a ‘whistleblowing’ exemption.
99.Mr Paterson may have been motivated by avoidable deaths due to poor calibration of laboratory equipment, but he does not appear to have provided any detailed evidence to Ministers on the subject, and even on his own account, his approaches went far beyond the issue of poor calibration. Mr Paterson is entirely open about the fact that his approaches aimed to bring to the attention of the Department the benefits of Randox’s technology. His argument that these approaches fell within a ‘whistleblowing’ exemption is, in our view, wholly unsustainable.
100.Regardless of whether or not Randox eventually secured a contract with the Department, it is clear that a company in their position could only have benefited by promoting their technology to Ministers and officials and gaining contacts among the Department’s stakeholders. Mr Paterson himself has described the meeting with the Minister of State as “selling an idea” and “get[ting] the technology into the minds of the officials”.
101.We therefore agree with the Commissioner that Mr Paterson breached paragraph 11 of the 2015 Code of Conduct, on paid advocacy, in his approach to the Secretary of State on 12 October 2016, his letter to the Secretary of State on 13 October 2016, his meeting with the Minister of State on 12 January 2017 and his letter to the Minister of State on 16 January 2017.
102.During Mr Paterson’s interview with the Commissioner, he stated that he was fully aware of the lobbying rules before making his approaches:
PCS: […] One interpretation is that you ensured you were aware of your obligations with respect to lobbying following the advice you that received from ACoBA73 but forgot to ensure that you were aware of and adhered to the rules on lobbying for Members of Parliament.
OP: No, I didn’t forget. I was fully aware of the obligations and I knew that on each of these three cases there was a very serious wrong or injustice, if you want, about the mis-selling of a product into the market. I was absolutely right using my position and experience in taking it forward. I’m elected for my judgment.74
103.We asked Mr Paterson in oral evidence whether he was aware, at the time he made his approaches, of the specific “serious wrong” exemption. Mr Paterson initially said he was, but then referred only to his discussions with ACoBA and his understanding that there was provision for “exceptional circumstances”. Mr Paterson also made clear that he did not consult the terms of the rules before he made his approaches:
Chair: […] When you engaged in these various different conversations in these meetings, did you consciously think, “I am using that exception”?
Mr Paterson: Yes. In my discussions with ACoBA at the beginning and the exchange of letters—they sent me the rules, and I obviously read them—I was fully aware of two things. One, always declare an interest—which I have done—and I was aware that there were exceptional circumstances. Something really serious came up. I did not go back and look at the rulebook before I rang up the FSA. I was absolutely clear, according to my judgment, and Iain Duncan Smith makes this point: we are elected for our judgment as MPs. I thought this was a really serious issue. The other two are as well, so I am very confident that I am covered by this.75
104.When we questioned Mr Paterson on whether he had considered repaying sums he had received, in order to release himself from restrictions under the lobbying rules, before making his approaches, Mr Paterson replied:
That is a possible option, but no one in ACoBA ever suggested to me that that should be suspended.76
105.ACoBA, the Advisory Committee on Business Appointments, is an advisory non-departmental public body based in the Cabinet Office. It does not advise Members on their obligations under the Code of Conduct. It advises former Ministers and Senior Civil Servants on their obligations under the Business Appointment Rules and the Ministerial Code. Mr Paterson, as a former Minister, was indeed required to follow ACoBA’s advice and the applicable provisions of the Business Appointment Rules. But as a serving Member he was also required to abide by the Code of Conduct for Members, on which the Commissioner’s office, not ACoBA, is the authoritative source of advice. We would not expect ACoBA to tender tailored advice on Members’ obligations under the House’s Code of Conduct.
106.We are concerned that Mr Paterson may have been aware of the relevant prohibitions on initiating parliamentary proceedings, but may have confused the other aspect of the lobbying rules—namely the prohibitions on approaching Ministers, Members or public officials—with his obligations under the Government’s Business Appointment Rules.
107.Mr Paterson claims, in at least ten of the fourteen approaches where the Commissioner has found him to be in breach of the rules, that he was acting within the “serious wrong” exemption. He thereby implicitly acknowledges that his actions would, unless that exemption applies, fall within the ambit of the paid advocacy rule. Mr Paterson told the Commissioner, and us, that he was fully aware of his obligations under the rules when he acted, but was relying, having neither consulted the rules nor sought advice from the Registrar, on a recollection that the rules made provision for “exceptional circumstances”. At best, Mr Paterson was relying on an exemption he thought probably existed but of whose terms he was unsure. At worst, Mr Paterson was knowingly in breach of the lobbying rules.
108.Mr Paterson told us in oral evidence:
It is extremely rare for me to raise my consultancies with the Government. I have never once raised them in Parliament. These interventions were exceptional, as there was in each case a serious wrong—as allowed by paragraph 9.77
109.We accept that Mr Paterson has not raised issues relating to his consultancies in Parliament. It also appears, however, that Mr Paterson has not previously raised any issues that did not relate to his consultancies with the FSA, the Chief Veterinary Officer or others. We asked Mr Paterson in oral evidence:
Andy Carter: Can you give any other examples where you have held meetings, you have raised issues with either the Food Standards Agency or the [Chief Veterinary Officer] or medical officer, where you have felt seriously concerned about an issue that has been raised with you, to demonstrate the urgency of an issue coming to you? Has anything else happened where you felt that you needed to take it forward and raise it with somebody at a senior level in those agencies?78
Mr Paterson responded:
No. Well, I can’t really think of anything. That is why these were exceptional.79
110.By Mr Paterson’s own account, he raised three separate matters, all relating to his consultancies, through multiple meetings, letters, and emails between October 2016 and December 2018. In none of the communications seen by the Commissioner did Mr Paterson make explicit reference to the “serious wrong” exemption or suggest that he would not normally approach the individuals concerned in relation to his consultancies.
111.What might have been permissible in a single exceptional case, became Mr Paterson’s standard practice. It meant he repeatedly used his position as a Member to promote the companies by whom he was paid. This fits squarely within the definition of paid advocacy, which has long been banned by the House. It stretches credulity to suggest that fourteen approaches to Ministers and public officials were all attempts to avert a serious wrong rather than to favour Randox and Lynn’s, however much Mr Paterson may have persuaded himself he is in the right.
112.The lobbying rules are crucial to maintaining public confidence that Members are not using their access to Ministers and public officials in order to attempt to secure benefits for themselves or their paying clients, and that the policy and parliamentary agenda cannot be set by making payments to a Member.
113.We do not need to decide if Mr Paterson’s approaches led to good outcomes. They may well have done. But the paid advocacy rule does not distinguish between lobbying for good causes and lobbying for bad causes. It only applies to lobbying for reward or consideration. There is a strong public interest in preventing any lobbying by Members in return for reward or consideration, no matter how meritorious the Member may think it or that it would appear to be.
114.The fact that there was no immediate financial benefit secured by Randox or Lynn’s, and that witnesses have supported Mr Paterson’s claim that he was motivated by issues of public policy, appears to have misled Mr Paterson into thinking that he could not have breached the rules. But Mr Paterson’s approaches could clearly have conferred significant benefits on Randox and Lynn’s in the long term and even in the short term secured meetings that were not available without Mr Paterson’s involvement.
115.With the single exception of his meeting on 15 November 2016 with the Food Standards Agency regarding milk testing, we do not accept that Mr Paterson’s approaches fell within the serious wrong exemption. Even if Mr Paterson was, to an extent, approaching the FSA about a serious wrong in his follow-up approaches on milk testing and in his 2017 approaches relating to alleged mislabelling, the exemption requires an approach to fall wholly, not just partly, within its scope. If he was seeking to act within this exemption in all his approaches, we would have expected Mr Paterson to confine himself far more carefully to the sole provision of evidence of a serious wrong, and rigorously avoid any impression that he was seeking additional benefits for his clients.
116.Mr Paterson was the one Member who could not approach Ministers or public officials on behalf of Randox and Lynn’s in this way because he was paid by them. The option was open to him to repay the sums he had received from Randox and Lynn’s in the preceding six months, in order to release himself conclusively from the restrictions under the rules and resolve the conflict of interest. Mr Paterson could also have advised Randox or Lynn’s that they should ask another Member, not restricted by the lobbying rules, who might have been willing to make representations on the merits of the issues; or, in relation to the calibration of laboratory equipment, could have raised the issue outside parliament, in newspapers, on television and on social media. Mr Paterson did none of these.
117.We agree with the Commissioner that Mr Paterson’s breaches of the paid advocacy rule are of sufficient seriousness also to have caused “significant damage to the reputation and integrity of the House of Commons as a whole”, and therefore also conclude that Mr Paterson breached paragraph 16 of the 2015 Code of Conduct.
118.The Commissioner found that Mr Paterson had breached the rules on declarations of interest in respect of emails sent to officials at the Food Standards Agency on 16 November 2016, 15 November 2017, 8 January 2018 and 17 January 2018, in which he did not declare that he was a paid consultant to Randox or Lynn’s Country Foods.80
119.Paragraph 13 of the 2015 Code of Conduct provides that:
[Members] shall always be open and frank in drawing attention to any relevant interest in any proceeding of the House or its Committees, and in any communications with Ministers, Members, public officials or public office holders.
120.Paragraph 7 of Chapter 2 of the 2015 Guide to the Rules provides that:
Members must declare a relevant interest in any communication, formal or informal, with those who are responsible for matters of public policy, public expenditure or the delivery of public services. That includes communication with […] public officials (including the staff of government departments or agencies and public office holders). If those communications are in writing, then the declaration should be in writing too; otherwise it should be oral.
121.In oral evidence before us, Mr Paterson told us:
I think [the Commissioner’s finding] is a completely artificial device by the Commissioner to try to catch me out on the four emails confirming the meetings. Every single person there knew that I was a consultant.81
122.We do not agree with Mr Paterson’s analysis. The specific requirement in the 2015 Guide is that “if […] communications are in writing, then the declaration should be in writing too”. We note that emails are often forwarded to further recipients or saved for future records, and that any such recipients would not have the benefit of an oral declaration in a previous meeting. We do not agree that the Commissioner has applied an “artificial device”. She has applied the most straightforward interpretation of the rules, namely, that a Member must declare relevant interests in “any communication” with Ministers, Members or public officials. The Guide does not distinguish between communications that are follow-ups to meetings or telephone calls, and those that are not. It would be artificial to treat a meeting and a follow up email as a single communication.
123.Mr Paterson stated in his written evidence that “When I approached the FSA, I made my capacity clear. That does not require me to keep stating my capacity”.82 This is not the case. Members are required to make regular declarations of relevant interests, even if those with whom they are communicating are likely to be aware of their interest.
124.The witness statements provided by Mr Paterson demonstrate that he was punctilious in declaring his interests in meetings. We also accept Mr Paterson’s assurance that those with whom he was dealing in these instances were aware that he was a consultant to Randox or Lynn’s. However, Mr Paterson, on four occasions, has failed to declare a relevant interest in a separate written communication to public officials.
125.Mr Paterson’s letter to the Secretary of State for International Development dated 13 October 2016 stated that he works “with” Randox, rather than working “for” Randox as a paid consultant.83 When we asked Mr Paterson about this in oral evidence, he replied that “that letter was knocked out in a real rush. […] The key point is that I will have told—I definitely told Priti—that I was a consultant. It is an understood expression. Now perhaps I should have used “for”, “with”, or “by”, or whatever.”84 We would expect more rigour in declaration on every occasion in a case such as this.
126.The Commissioner has stated that she is satisfied that “Mr Paterson’s general approach was to declare his interest and that those who had regular contact with him were well aware of these”,85 and that she considers the breaches of the rule on declarations of interest “to be towards the minor end of the scale”.86
127.We agree with the Commissioner that Mr Paterson breached paragraph 13 of the 2015 Code of Conduct in failing to declare an interest in four emails to officials at the Food Standards Agency. We accept that Mr Paterson was more punctilious in declaring his interest in meetings, and that those with whom Mr Paterson dealt were probably aware of the capacity in which he was acting. In light of this, we also agree with the Commissioner that, taken alone, this is a minor breach of the Code.
128.Paragraph 15 of the 2015 Code of Conduct provides that:
Members are personally responsible and accountable for ensuring that their use of any expenses, allowances, facilities and services provided from the public purse is in accordance with the rules laid down on these matters. Members shall ensure that their use of public resources is always in support of their parliamentary duties. It should not confer any undue personal or financial benefit on themselves or anyone else, or confer undue advantage on a political organisation.
129.During the Commissioner’s investigation, Mr Paterson provided the Commissioner with a list of meetings he had had with Randox and Lynn’s, with locations and dates, between October 2016 and February 2020. This included 27 meetings, which Mr Paterson stated were held in his parliamentary office.87
130.The Commissioner found that Mr Paterson breached paragraph 15 of the 2015 Code of Conduct, on use of parliamentary facilities, by using his parliamentary office on 25 occasions for business meetings with his clients. The Commissioner found that a brief social visit, and a meeting to plan the Life Sciences reception, did not breach the rules.
131.Mr Paterson restated in his initial written evidence to us that 25 meetings, in addition to the two the Commissioner did not find in breach, took place in his parliamentary office.88
132.In correspondence to us shortly before giving oral evidence, Mr Paterson stated that only five of these meetings were not pre-meetings or other events which he did not consider to be full meetings.89 Mr Paterson stated that he had provided the Commissioner with “details of all contacts at my office, which extend beyond consultancy meetings”.90
133.Following his oral evidence, Mr Paterson provided further written evidence to us in which he said that the initial list he had provided to the Commissioner overstated the true number, and that “I can now state that some of the ‘meetings’ didn’t take place as in my diary, either at all, or not in my office”.91
134.Mr Paterson’s most recent written evidence suggests that five meetings were listed as taking place in his parliamentary office but did not do so; that two meetings, on 17 July 2018 and 18 December 2018, were not in fact attended by any Randox representatives; and that there were two meetings held with Randox in relation to the Life Sciences Reception, not one.92 Mr Paterson further contends that meetings at which he claims to have provided evidence of a serious wrong should not be considered to be breaches.93 We accept this in respect of the meeting with the FSA on 15 November 2016, as we explain in paragraph 32 above, but cannot do so in respect of meetings at which we have found Mr Paterson breached the paid advocacy rule. We do not accept either that Mr Paterson’s monthly meetings with Lynn’s Communications Director can be considered as purely social, if they involved discussing “what Lynn’s were doing”.94
135.Overall, in light of Mr Paterson’s additional written evidence, we consider that the number of meetings in question is 16, rather than 25. We do not understand, however, why Mr Paterson could not have made this further evidence available to the Commissioner during her investigation.
136.Mr Paterson does not contest that the meetings were not part of his parliamentary activities. He maintains that he has not breached the rules on use of facilities because the use of his office was occasional; and because whips had encouraged Members to remain on the estate during the relevant period since parliamentary business at the time was highly unpredictable.
137.We accept that parliamentary business at the time Mr Paterson held the meetings was very unpredictable. We cannot accept, however, that a request from whips to remain on the parliamentary estate provides an exemption from the requirement that Members’ use of public resources must be in support of their parliamentary duties. Mr Paterson could have conducted phone calls instead of meetings, or could have sought to arrange meetings very close to the Parliamentary estate, in order to comply with his whips’ request.
138.Mr Paterson also maintained that statements from current and serving Members served to “[confirm that] I did not breach the rules in clear terms”.95 Mr Paterson does not dispute that a parliamentary office is a facility provided out of public resources. Paragraph 15 of the 2015 Code therefore requires that its use should be “always in support of [a Member’s] parliamentary duties”. We do, however, endorse the longstanding position of successive Commissioners that the rules on use of offices should be operated with a “sense of proportion”.
139.We note that two of the witness statements provided by Mr Paterson stated only that Members regularly and properly meet a wide variety of people or organisations, such as Trades Unions or journalists, in their offices.96 The Commissioner has not found to the contrary, and neither do we. A further two of the statements noted that Members sometimes use their offices for writing books, articles, and speeches for outside organisations, for undertaking surveys, and so on.97
140.We consider that Mr Paterson’s use of his parliamentary office went beyond the latitude normally afforded under the rules. Members’ roles are complex and multifaceted and the distinction between what is a parliamentary activity, and what is not, is not always a clear one. In this case, however, Mr Paterson has urged upon us that he kept his business interests entirely separate from his role as a Member.98
141.Mr Paterson acknowledges that he should not have used other parliamentary facilities provided out of the public purse, such as headed notepaper, for his outside commercial work. Despite this, Mr Paterson regularly used his parliamentary office for business meetings with his paying clients.
142.In a previous case, in the 2017–19 Session, a Member was found to have breached the Code (among other breaches) for using their parliamentary office on 20 occasions to conduct a review for the GLA, for which they received payment. We considered as aggravating factors, in that case, the fact that she had received payment, and that 20 was a large number of meetings.99
143.Mr Paterson told us in oral evidence that he considered the Commissioner had applied a test which was not in the rules:
The Commissioner has then effectively created a new rule on page 65. She creates something called, “Nonetheless, other than in very rare and exceptional circumstances”. That is not actually in the rules, and she has a tendency to do this, which is to create new rules.100
The Commissioner, in making this qualification, was applying a degree of latitude which her predecessors, and ours, have endorsed, which allows that there may be circumstances in which use of a parliamentary office for non-parliamentary activities may be permitted. We also note that the Commissioner’s application of a degree of latitude was, in principle, to Mr Paterson’s advantage.
144.In further written evidence to us following his oral evidence, Mr Paterson argued:
It is to be noted that the rules permit me to book a room for a meeting where tea and coffee is served, without declaring an interest. That should be no different to using my room. It would be odd that I could book a room for such meetings, but not use my own office.101
This is not correct. The current room booking rules, available on the parliamentary intranet, state that meeting rooms on the parliamentary estate may not be booked for “events of a commercial nature or any other non-parliamentary purpose. For such activities the commercial private dining facilities should be used.” The overriding requirement on the use of facilities provided out of the public purse—whether offices or meeting rooms—is set out in paragraph 15 of the 2015 Code, that such use must be “always in support of [a Member’s] parliamentary duties”.
145.Mr Paterson also told us in oral evidence that he was not aware of the restrictions on the use of Members’ parliamentary offices, and that the issue had not been raised with him:
Mr Paterson: […] The public view of this is very important, but it is also important to stress that nobody had raised the issue of meetings in an office before until the Commissioner did. The meetings that I have are pretty spare.
Mrs Dexter: Nobody has raised it with you personally, maybe.
Mr Paterson: No, and it was never raised by ACoBA, or in discussions with the Registrar.102
We would not expect the Registrar to offer tailored, unsolicited advice on the use of a Member’s parliamentary office unless a potential misuse was drawn to her attention; and we would certainly not expect ACoBA to offer tailored advice on House of Commons matters. The onus is on Members to ensure that they are aware of the rules, and to seek advice if they are unsure.
146.We agree with our predecessors that the rules on the use of parliamentary offices should be operated with a ‘sense of proportion’. In this case, however, Mr Paterson stated that he kept his commercial interests entirely separate from his parliamentary activities but used his parliamentary office to conduct business meetings with his paying clients. We therefore agree with the Commissioner that Mr Paterson breached paragraph 15 of the 2015 Code of Conduct in holding 16 meetings relating to his outside business interests in his parliamentary office between October 2016 and February 2020.
147.Paragraph 3 of the stationery rules provides that:
House-provided stationery and pre-paid envelopes are provided only for the performance of a Member’s parliamentary functions. In particular, this excludes using stationery or postage: […] (ii) for business purposes;
148.The Commissioner found that Mr Paterson breached the rules of the House on the use of stationery in writing to the Secretary of State for International Development regarding Randox and blood testing on 13 October 2016, and in writing to the Minister of State on 16 January 2017.
149.Mr Paterson acknowledged that he breached the rules of the House relating to the use of stationery in his letter to the Commissioner on 16 January 2020 and apologised to the Commissioner for doing so. Mr Paterson repeated his apology in oral evidence before us.103
150.The Commissioner has said in her memorandum that:
Mr Paterson said he had located the two letters he had sent using House of Commons paper, for which he apologised. He said a long-term member of staff had been on leave and he had had a temporary member of staff at the relevant time. He told me that the use of House-provided stationery had been “an unfortunate oversight on [his] part” for which he took full responsibility. Mr Paterson told me that he had been an MP since 1997 and this was the first occasion that he had breached a House of Commons rule.104
151.We agree with the Commissioner that Mr Paterson breached paragraph 15 of the 2015 Code of Conduct in sending two letters relating to his business interests on House of Commons headed notepaper on 13 October 2016 and 16 January 2017. We note that Mr Paterson promptly acknowledged this breach and apologised to the Commissioner and to us. Taken alone, we regard this as a very minor breach of the rules.
152.The Commissioner is an independent Officer of the House, appointed to advise this Committee, and Members generally, on the House’s Code of Conduct, and to undertake investigations into alleged breaches of the Code, under Standing Order No. 150.
153.The Commissioner’s status is as an independent and impartial office holder. She follows an inquisitorial process in her investigations, in which she gathers evidence she considers to be relevant to her investigation, weighs it in order to come to a conclusion, and reports on her findings. As part of the inquisitorial process, Members are given an opportunity to respond fully to the alleged breaches and to provide any material to the Commissioner that they consider to be relevant. It is open to the Commissioner, having opened an investigation, to find that no breach has occurred, and she regularly does so.105
154.As an independent officer, the Commissioner has no personal interest in whether a breach is found or not. She is not akin to a ‘prosecutor’, making the best case for the finding of a breach. Rather, she acts as an adviser to this Committee, advising impartially on whether she considers there has been a breach of the Code. We are grateful for the Commissioner’s advice, but are not bound by it, and determine on the basis of the evidence before us, including any further written or oral evidence provided by the Member, whether we agree with her findings.
155.Mr Paterson has had extensive opportunities to provide evidence and to respond fully to the allegations against him, which we now outline below.
156.Following the 2019 General Election, Mr Paterson responded to the Commissioner’s initiation letter on 16 January 2020. Mr Paterson was provided with the Registrar’s advice, sought by the Commissioner, on 25 February 2020, and was asked additional questions by the Commissioner. Mr Paterson responded on 19 March 2020. Having reviewed additional material provided by Mr Paterson, the Commissioner wrote to him with additional questions on 29 May 2020. Mr Paterson responded on 18 June 2020.106
157.The Commissioner then suspended the inquiry on compassionate grounds following the death of Mr Paterson’s wife on 24 June 2020. She did not resume it until Mr Paterson’s solicitor signified that he was happy to continue.107 Having resumed the inquiry, the Commissioner asked a single point of clarification and, following Mr Paterson’s response, she sent him a draft memorandum on 1 December 2020 with a two-week deadline for comments, in particular on factual accuracy. The Commissioner agreed to Mr Paterson’s request for an extension, to 13 January 2021, later extended to 27 January 2021. Mr Paterson responded on 15 January 2021. On 4 February 2021 Mr Paterson requested a meeting with the Commissioner, which she agreed to. The meeting took place on 11 February 2021.108
158.On 24 February, Mr Paterson requested a further meeting with the Commissioner. Mr Paterson subsequently asked for two to three weeks to complete his own enquiries prior to the meeting, and asked that the meeting be in person, which the Commissioner was unable to offer, due to the House’s COVID-19 working practices. The Commissioner set a deadline for any further material to be provided by 26 March 2021. The Commissioner interviewed Mr Paterson at his request on 26 March 2021. The Commissioner wrote to Mr Paterson asking further questions which could not be put to him in the interview on 30 March 2021, to which Mr Paterson responded on 9 April 2021.109
159.The Commissioner substantially revised her initial memorandum in the light of witness evidence and further information supplied by Mr Paterson. She sent a second draft of the memorandum to him on 11 June 2021 for a further factual accuracy check. Mr Paterson replied on 2 July 2021, and his reply is published alongside the other written evidence in this case.110
160.We received the Commissioner’s completed memorandum on 16 July 2021. We invited Mr Paterson to submit any written evidence by 23 July 2021, and informed Mr Paterson that we would normally agree to a request by a Member to give oral evidence. We agreed to a request by Mr Paterson to extend the deadline for written evidence to 11 August 2021.
161.Mr Paterson wrote to us on 23 July 2021 and also provided further written evidence in the form of a statement on 10 August 2021.111 Mr Paterson gave oral evidence before us on 21 September 2021. At his request, we gave Mr Paterson the opportunity to make a fifteen-minute opening statement. We also acceded to a request from Mr Paterson that he be accompanied by his legal advisers.
162.Mr Paterson has stated:
I was accused […] on 30 September 2019, of undertaking paid lobbying, which I flatly deny. The Commissioner wrote to me on 30 October 2019, a few days before Parliament was dissolved, before the election on 12 December 2019, to advise that an investigation was being commenced and at the same time that it would be suspended whilst Parliament was dissolved. […]
The Commissioner then wrote to me on several further occasions with additional questions in what was an ever-expanding inquiry. I answered all the Commissioner’s questions. The Commissioner did not respond to the answers I gave and expanded the issues under investigation way beyond the original accusations.
The Commissioner has stated that this is an inquisitorial process and that the scope and work undertaken are entirely matters for her and not for disclosure to or discussion with me. I was left in the dark for long periods. There is no formal process and no right of redress.112
163.The Commissioner has provided a timeline of the investigation in Appendix 3 to her memorandum. This timeline shows that the only lengthy delay caused by the Commissioner’s office was between March and May 2020, due to the COVID-19 pandemic.113 The Commissioner has noted that most of the delays to the investigation have been to allow Mr Paterson extra time to produce evidence.114
164.Mr Paterson has also argued that he was given insufficient time to gather evidence following the receipt of the Commissioner’s draft memorandum in December 2020.115 The Commissioner has responded:
The draft Memorandum was sent to Mr Paterson for a factual accuracy check on 1 December 2020. This was not intended to be the stage at which Mr Paterson began to collect evidence and submit his case. Mr Paterson had originally been informed of the nature of the allegations in October 2019 and had been asked a number of questions since, so the Commissioner believed Mr Paterson had had sufficient opportunity to become acquainted with the nature of the allegations and present any evidence he thought relevant.
[…] As the inquiry had been delayed already and the Commissioner did not expect Mr Paterson to bring additional evidence at this stage, he was asked to respond in 2 weeks, on 15 December, well before Christmas, however, at Mr Paterson’s request this time has been extended more than once to enable Mr Paterson to submit additional evidence.116
165.Long investigations are undesirable. They can place the Member concerned under considerable strain. They should be conducted as expeditiously as possible, so long as rigour and fairness are not compromised. In this case the length of the investigation was primarily due to Mr Paterson’s understandable requests for additional time to gather and submit evidence. Only one delay, between March 2020 and May 2020, was due to the Commissioner’s office—and that was as a result of the COVID-19 lockdown. We will analyse in further detail the length of recent investigations and adjudications as part of our inquiry into the Code of Conduct, and will consider if any further steps can be taken to ensure that investigations and disciplinary cases are conducted as expeditiously as possible. Separately from this investigation, the Commissioner has informed us that since March 2021 she has routinely conducted an initiation interview with the Member concerned in investigations that involve serious allegations, to assure herself that the Member is fully appraised of the detail of the allegations and the process at the earliest possible stage. We hope that this step will help to reduce the length of investigations into the most serious allegations.
166.In relation to broadening the scope of the inquiry, the Commissioner has stated:
During the course of the inquiry, it became apparent there might have been additional breaches of the rules of conduct. My inquiry was extended in response to this, and [Mr Paterson was] notified in accordance with natural justice.117
167.It is normal practice for the Commissioner to adjust the scope of her investigation as evidence is disclosed to her which indicates or closes relevant avenues of inquiry. We acknowledge that it will always be unwelcome news for a Member under investigation to be informed by the Commissioner that she has broadened the scope of her investigation to include consideration of additional possible breaches. However, where this is based on evidence disclosed to her, and the Member is notified and given an opportunity to respond, as is routinely the case, we see no reason why this should be regarded as incompatible with natural justice.
168.Mr Paterson has stated that:
At the heart of this case is a substantial factual dispute. I do not believe that anyone can fairly determine such a dispute without a proper investigation. That requires engagement with witnesses and the consideration of contemporaneous documents, knowing their source, who the author was and their state of knowledge. This is common sense and in accordance with natural justice but none of this has happened in my case.118
It cannot be right or fair to seek to find facts on what was said at meetings which were not recorded without speaking to people who were present. On any basis, that is contrary to fairness and natural justice.119
169.We do not agree that there is a substantial factual dispute at the heart of this case. In most instances, Mr Paterson does not dispute the factual basis used by the Commissioner. At the heart of this case, rather, is a disagreement over the Commissioner’s judgment as to whether the outcomes sought by Mr Paterson could reasonably be considered to confer a benefit on Randox or Lynn’s and whether Mr Paterson’s approaches can be considered properly to fall under the serious wrong exemption.
170.Mr Paterson does challenge the weight that the Commissioner has placed on FSA briefing notes and readouts as opposed to witness statements provided by Mr Paterson, in respect of his approaches to the FSA in respect of Randox and Lynn’s. The Commissioner has had the benefit of Mr Paterson’s witness statements and has considered and weighed them as she has other evidence provided to her. Her initial draft memorandum was revised extensively in light of the witness statements subsequently provided by Mr Paterson. It seems to us fair, in any event, to place reasonable weight on contemporary records made at the time of the meeting rather than recollections over two years later, as well as to take into account the perception of FSA officials of what Mr Paterson’s clients were seeking from his approaches. Having weighed the evidence ourselves, we have relied extensively on Mr Paterson’s own emails and the witness statements provided by him. We consider that, even were the FSA internal emails, briefing notes and readouts to be set aside, this would not materially alter our findings in this case.
171.Every meeting that the Commissioner found to have breached the lobbying rules was also the subject of a follow-up email by Mr Paterson which has been seen by the Commissioner, emails which Mr Paterson characterises as summarising and confirming the outcomes of a meeting. As the Commissioner notes, it is therefore reasonable—by Mr Paterson’s own lights—to consider the follow-up email as reflective of what was discussed in the respective meeting.120
172.Mr Paterson has also stated that:
[…] if a witness statement is not challenged, it should stand. Yet the memorandum sets greater store by anonymous contributors at the FSA than by signed witness statements that would be subject to perjury laws.121
173.We do not agree that the Commissioner’s processes require that witness statements be challenged. This might be required in an adversarial process. But investigations of alleged breaches of the Code are subject to an inquisitorial process undertaken by an independent and impartial investigator. Under such a process, the Commissioner weighs the evidence presented to her before making a finding. She does not need to ‘challenge’ any individuals concerned if she decides that parts of their evidence are not relevant or are outweighed by other relevant evidence.
174.The Commissioner has stated:
The case of Browne v Dunn [to which Mr Paterson refers in respect of challenging witnesses] concerns how evidence must be challenged in an adversarial court hearing in England and Wales. This inquiry is not an adversarial court hearing but an internal House proceeding seeking to determine whether [Mr Paterson has] breached the code of conduct for Members of Parliament. The common law and the case of Browne v Dunn do not apply to this inquiry as it is not an adversarial court hearing, but an internal inquisitorial inquiry conducted under Standing Orders in the House of Commons. I apply a process that I am satisfied is fair and efficient in relation to all evidence produced.122
175.Mr Paterson repeatedly invited us, in oral evidence before us, to “get the witnesses in”.123 He supplied us with details of 17 witnesses from whom he wished the Committee to take oral evidence.124 We, like the Commissioner, have had the benefit of the written statements provided by the witnesses to which Mr Paterson refers. We do not see what further relevant information could usefully be gleaned by inviting oral evidence from the witnesses concerned. We have relied extensively upon the witness evidence provided by Mr Paterson in coming to our conclusions.
176.Mr Paterson believes that the witness evidence he has provided establishes his innocence because he and other witnesses purport to testify that he did not breach the rules.125 However, the witnesses to which Mr Paterson refers testify, in this regard, about their perception of Mr Paterson’s motivations. As Mr Paterson himself states:
The witnesses confirm my motivations were genuine.126
My sole motivation was milk safety as the witnesses testify. Their evidence must be accepted.127
But subjective motivation is not the test under the lobbying rules. The test under the rules is whether Mr Paterson initiated an approach which sought to confer, or would have the effect of conferring, a benefit on the organisation from which he was receiving outside reward or consideration. Paid advocacy does not require that the Member is personally motivated by the conferral of a benefit.
177.The witness statements also testify that Mr Paterson was diligent in declaring his interests in meetings, and that those with whom Mr Paterson was dealing generally knew the capacity in which he was acting. The Commissioner has not made any finding of fact to the contrary, nor have we. The only finding made in relation to declarations relates to four emails sent by Mr Paterson (and we have indicated that we regard that as a minor breach).128
178.Lastly, but most significantly, seven of the fourteen approaches that the Commissioner found to be in breach of the paid advocacy rule were emails or letters from Mr Paterson which have been seen by the Commissioner. It is difficult to see what witness evidence could materially alter the Commissioner’s findings as to whether these letters or emails breached the paid advocacy rule.
179.In accordance with our normal practice, Mr Paterson was provided with all written material submitted by the Commissioner to the Committee in this case, including correspondence to the Committee following receipt of the memorandum.
180.Mr Paterson’s solicitor had previously requested, in August 2021, that the Commissioner “now leaves this matter to the Committee and there is no further engagement between the Commissioner and any Committee members”, and argued that it “would not be transparent for the Commissioner to meet in a closed session with the Committee”.129 Following receipt of correspondence between the Commissioner and the Committee in September 2021, Mr Paterson then asked the Committee to disclose to him the content of its deliberations at its meeting on Tuesday 7 September 2021, at which the Commissioner was present.130
181.Select Committees of the House deliberate in private; and, as, noted above, the Commissioner’s status in relation to the Committee is as an adviser, as set out in Standing Order No. 150(2)(c). She attends private meetings of the Committee pursuant to that Standing Order, in accordance with the established practice of the Committee in disciplinary cases. The request from Mr Paterson’s solicitors did not, in our view, take proper account of this formal relationship between the Commissioner and the Committee under Standing Orders. We did not, therefore, consider there was any reason to vary our established practice in response to the request by Mr Paterson’s solicitors that the Commissioner have no further contact with the Committee; and we did not disclose the private deliberations of the meeting to Mr Paterson.
182.Mr Paterson stated in his written evidence:
One question I have asked the Commissioner several times is to disclose all information received from third parties, not just the documentation provided in response to the Freedom of Information Requests, but the requests themselves and all and any other requests and emails. The Commissioner has refused to do this. So the investigation is not transparent.
[…] It may be that those behind this investigation and who are supplying documentary evidence, did interview witnesses who supported my case and so that material has been filtered out. It may be that documents have been obtained and not passed to the Commissioner. I am entitled to know all of this and can only do so by having proper disclosure of all third-party material sent to the Commissioner and to see all email communications etc.131
183.The Commissioner has responded that she is “unsure why Mr Paterson considers this to be relevant” and that she “was not provided with the FOI material; it was publicly available on the FSA website, and was referred to in the article published by the Guardian in September 2019”.132
184.The Commissioner has not, contrary to Mr Paterson’s claims, been “supplied” with documentary evidence by those “behind this investigation”. She has only relied on material which has been disclosed to Mr Paterson.
185.In further written evidence to us following his oral evidence, Mr Paterson alleged that some emails, and the details of who sent them, referred to in the oral evidence session had not been disclosed to him by the Commissioner:
In January 2021 the Commissioner provided me with redacted Annexes C and D to the FSA FOI. I then carried out my own search of the FSA FOIs and uncovered the email relating to “clearing the market” which fell within Annex A. This is I believe the email to which Professor Maguire referred [ie. in oral evidence]. This email had not been disclosed by the Commissioner.
[Mr Paterson’s solicitors] asked [a member of the Commissioner’s office] for an explanation and were told this email was not relevant and that is why it was not disclosed. So it is not part of the case I am to answer.
It is important to note that documents were being selectively disclosed to me. I did not receive the entire file as I was told would be the case.
The Commissioner provided further documents from the FSA with her letter dated 30 March 2021. The “clearing the market” email was still not disclosed.133
186.The Commissioner has responded:
All documents referred to in the memorandum have been disclosed in the written evidence bundle, and we gave Mr Paterson the full unredacted material from the FSA. Mr Paterson refers to Annex A, but actually the email he refers to is FOI material provided by the FSA directly to the Commissioner (WE 39ii).134 This material was provided to Mr Paterson in its full unredacted form alongside the memorandum. Annex A simply repeats the FOI request, which is why [Mr Paterson’s solicitors] were told it was not relevant. Mr Paterson refers to the email not being included in the Commissioner’s letter of 30 March. The material from the FSA was provided on 23 April.135
187.We are satisfied that Mr Paterson has had the material on which the Commissioner has relied disclosed to him, including in unredacted form.
188.Mr Paterson stated in his written evidence that one of the grounds on which he objects to the process followed by the Commissioner is that the Commissioner “fail[ed] to interview me before [she] made her initial findings of fact in the first draft memorandum.”136
189.We drew Mr Paterson’s attention in oral evidence to terms used by the Commissioner in her initiation letter:
While I do not, at this stage, know whether it will be necessary to interview you about this matter, it would be open to you to be accompanied at any interview. I am, of course, very happy to meet with you at any stage if you would find that helpful.137
190.Mr Paterson responded:
It is not for me to direct her inquiry. She kept telling me that. I made it very clear in my letter that if you wish to interview me, I would be pleased to meet you. I had no idea how this was going to go.
[…] She has frequently said and made it very clear, “Mr Paterson, I run my own inquiry. It is inquisitorial,” etc., so it is not for me to, bluntly, antagonise her, and we had quite a battle.138
191.Mr Paterson has also suggested that the matter could have been addressed by a “simple phone call” by the Commissioner at the beginning of the investigation:
Why on earth didn’t she ring me and put the questions you are putting to me now—“You are accused by The Guardian of: boom, boom and boom”? I could have answered on the phone or we could have had a quick meeting.139
192.Mr Paterson also told us in oral evidence that he considered the Commissioner should have spoken to him prior to issuing her draft memorandum:
[…] by the disastrous final [letter from the Commissioner] on 18 June, we were miles away from the original […] accusations, and she still hadn’t talked to me. Then to send in the draft memorandum, which was riddled with errors and misinterpretations, without ever having talked to me […] was utterly extraordinary.140
193.We note that, in her email to Mr Paterson of 23 November 2020, the Commissioner asked Mr Paterson how he would like her to communicate her decision:
With that in mind, I would like to ask how you would like me to communicate my decision. I would be happy to call you first to give you an overview of my decision before sending you the document, if that would be helpful. And it would be helpful to know if you would prefer me to send it to you direct, or via your solicitor.141
Mr Paterson replied on 24 November 2020:
[…] Please ring my solicitor, [redacted], when you are ready to communicate your draft decision.142
194.When the Commissioner’s office called Mr Paterson’s solicitor as requested, on 26 November 2020, Mr Paterson’s solicitor informed them that Mr Paterson did not wish the Commissioner to call him and would instead prefer to receive the draft memorandum by email.
195.We acknowledge that Mr Paterson had expected that, were the Commissioner to make an adverse finding, she would have first asked to interview him. However, this expectation cannot have been formed on the basis of the Commissioner’s Information Note, which is approved by this Committee and provided to Members at the start of an investigation, nor on the Commissioner’s previous practice, where the Commissioner has regularly completed inquiries, including those which make an adverse finding, without having needed to interview the Member concerned. As the Commissioner has stated, her investigations are generally conducted in writing in order to allow Members the time to formulate their best evidence.143 Mr Paterson claims that the matters raised in the investigation could have been addressed by a “simple phone call”. An informal phone call would not be amenable to maintaining a formal written record. It is also difficult to see what Mr Paterson could have provided to the Commissioner on the telephone that he could not provide in a written response to her initiation letter. If a Member feels that they are better able to represent themselves to the Commissioner in a meeting, the Commissioner’s Information Note makes clear that she will agree to a request for a meeting at any stage in the investigation. We note that the Commissioner did so in this case.
196.The situation that Mr Paterson describes as “extraordinary”—namely, the Commissioner sending a draft memorandum without having spoken to him—was the situation opted for by Mr Paterson himself, the Commissioner having offered both to Mr Paterson and to Mr Paterson’s solicitor to speak to him in order to outline her draft decision before sending a copy of the memorandum, and both having declined.
197.During the course of the investigation, in written evidence, and in oral evidence before us, Mr Paterson has made serious and personal allegations reflecting on the integrity of the Commissioner and her staff.
198.In evidence to the Commissioner, Mr Paterson stated:
You ignore unchallenged witness evidence so you can reach adverse findings, which conflict with witness evidence. This shows you have not followed a fair process and appear biased against me.144
199.Mr Paterson has also stated in correspondence to us:
It is obvious that the Commissioner decided at an early stage that she believed The Guardian’s allegations, and this may explain why she did not seek witness evidence. The evidence I subsequently produced has been largely ignored, or wrongly disregarded as irrelevant.145
I am driven to believe that the Commissioner determined my guilt long before her inquiry finished, and probably as early as November/December 2020.146
200.Most seriously, Mr Paterson said in oral evidence before us that:
[M]y family and I have no doubt that the manner in which this inquiry has been conducted played a massive role in creating the extreme anxiety that led to [Mr Paterson’s wife’s] suicide.147
201.Mr Paterson’s allegations are extremely serious ones. They are made against an independent Officer of the House who has been appointed by the House to carry out impartial investigations under Standing Orders. They extend, by implication, to her staff, who are employees of the House Service. Mr Paterson is free to disagree with the Commissioner’s interpretation of the rules, and has done so. He is also free to argue that the Commissioner should have placed greater weight on particular evidence, circumstances, or aspects of the case, and has done so. This is not the same as making direct allegations of bias, prejudice, and predetermination against the Commissioner. In considering this case, we have not seen any evidence that the Commissioner has deviated from her normal process, has treated Mr Paterson any differently from any other Member, or has displayed any evidence of bias or predetermination. Indeed, Mr Paterson has had extensive opportunities to provide evidence that he considers relevant to the Commissioner, as we outline in paragraphs 156 to 161 above.
202.Mr Paterson’s allegations seem to us to spring from incomprehension that the Commissioner could place an interpretation on the rules and the evidence which differed from his own. A Member is entitled to contest, even vigorously contest, the Commissioner’s interpretation of the rules and her findings. We do not mark down any Member for doing so. It is, however, completely unacceptable to make unsubstantiated, serious, and personal allegations against the integrity of the Commissioner and her team, who cannot respond publicly.
203.The Commissioner’s investigations are protected by parliamentary privilege and are conducted in confidence. Members are permitted to seek advice and support during an investigation. Some Members obtain formal legal assistance, as Mr Paterson has done; some are supported by their whip or by a close colleague. We do not wish in any way to discourage or prevent Members from seeking and obtaining advice and support in this way during a process which, however sensitively conducted, can be difficult and stressful.
204.We have gained the impression, however, that an unusually large number of Members were aware of the details of this investigation prior to the publication of our report. We are therefore concerned that those from whom advice or support may have been sought have not maintained the confidentiality of the process.
205.We remind all Members that the Commissioner is an independent Officer of the House, and her investigations are undertaken by the authority of the House. We would treat deliberate breaches of the confidentiality of her investigations as a very serious matter. We also note the requirement set out in the Guide that “Members must […] not lobby the Committee or the Commissioner in a manner calculated to influence their consideration of [an inquiry into a Member’s conduct]”.148
206.On the morning when the Committee met to consider its report, 19 October 2021, the Daily Mail claimed that it had received a leaked copy of Mr Paterson’s statement to the Committee and proceeded to relay a series of allegations that Mr Paterson had made. As we pointed out to Mr Paterson at the time, we believe these allegations to be potentially actionable. The only people who had access to the transcript were the Committee members (apart from one Member who has recused himself), House of Commons staff and Mr Paterson and his legal advisers. Every member of the Committee and every House staff member who has had access to the transcript has stated on record that they did not leak the transcript. We wholly deprecate this leak, which appears to be an attempt to bounce the Committee or seek parliamentary privilege for potentially actionable comments. We cannot be definitive about how this occurred, or precisely what material the Daily Mail was given access to, but such action in itself would constitute a serious breach of the rules and a contempt of Parliament, and similar leaks of select committee material have in the past led to a suspension from the House.
207.Mr Paterson has an evident passion for dairy and farming matters, based on his undoubted expertise. We do not doubt that he sincerely believes that he has acted properly. Mr Paterson is clearly convinced in his own mind that there could be no conflict between his private interest and the public interest in his actions in this case. But it is this same conviction that meant that Mr Paterson failed to establish the proper boundaries between his private commercial work and his parliamentary activities, as set out in the Guide to the Rules. Mr Paterson told us multiple times in oral evidence before us that he was elected for his judgment, and that he judged that he was right to make the approaches he did. But no matter how far a Member considers that the private interest of a paying client coincides with the public interest, the lobbying rules rightly prohibit Members from initiating approaches or proceedings which could benefit that client. If such approaches were routinely permitted, the lobbying rules would be of little value. In failing to see the evident conflict of interest between his commercial work and his actions in this case, Mr Paterson has in turn convinced himself that he is the victim of an injustice in being investigated by the Commissioner. That does not exculpate him. Being able to judge the difference between one’s private, personal interest and the public interest is at the very heart of public service and a senior member of the House with many years standing should be able to make that distinction more clearly.
208.In accordance with our normal practice, we have considered if there are aggravating or mitigating factors in relation to these breaches.
209.We consider the following to be aggravating factors:
210.We consider the following to be mitigating factors:
211.Were we considering Mr Paterson’s breaches of the rules on declaration of interests and use of headed notepaper alone, these would have been only minor breaches, and we would have recommended a sanction at the lesser end of the scale. They might, indeed, have been dealt with under the Commissioner’s ‘rectification’ powers, without any need for a reference to the Committee. This is less true, however, of the breaches relating to Mr Paterson’s use of his office. It is certainly not true of Mr Paterson’s breaches of the paid advocacy rule. Any such breach is a serious matter, and multiple breaches even more so. In consequence we must recommend a sanction of commensurate severity, taking into account the aggravating and mitigating factors set out above.
212.This is an egregious case of paid advocacy. Previous instances have led to suspensions of 18 days, 30 days and six months. Each of Mr Paterson’s several instances of paid advocacy would merit a suspension of several days, but the fact that he has repeatedly failed to perceive his conflict of interest and used his privileged position as a Member of Parliament to secure benefits for two companies for whom he was a paid consultant, is even more concerning. He has brought the House into disrepute. We therefore recommend that Mr Paterson be suspended from the service of the House for 30 sitting days.
213.As the Government Deputy Chief Whip confirmed on 9 September 2021, it is the usual practice for the relevant motions to be tabled by the Government and debated as soon as possible.150 We would expect this to be within five sitting days.
1 Written evidence accompanying the Commissioner’s memorandum is published on the Committee’s webpages, as well as further correspondence from Mr Paterson and from the Commissioner.
2 See paragraph 161 below.
3 Appendix 1, para 5
4 Appendix 1, para 10; Appendix 2, para 4.11
5 Code of Conduct together with the Guide to the Rules relating to the conduct of Members, 18 March 2015 (HC 1076), Chapter 3, para 8(a)
6 2015 Guide to the Rules, Chapter 3, para 9
7 Guide to the Rules, Chapter 3, para 4
8 Committee on Standards and Privileges, Third Report of Session 2012–13, Proposed Revisions to the Guide to the Rules relating to the conduct of Members, HC 636
9 Guide to the Rules, Chapter 3, para 9
10 Appendix 2, para 8.7.4
11 Written Evidence 43
12 Written Evidence 43
15 Guide to the Rules, Chapter 3, para 8(b)
16 Guide to the Rules, Chapter 3, para 8(b)
17 Written Evidence 6i
18 Appendix 1, paras 61–62, paras 74–75
19 Appendix 1, para 69
20 Written Evidence 25xxvii
21 Written Evidence 43
22 Written Evidence 35
23 Written Evidence 6i
25 Written Evidence 6iii
27 Appendix 1, para 64
28 Appendix 1, para 66
29 Appendix 1, para 80
30 Appendix1, para 127
31 Appendix 2, para 2.21
32 Appendix 2, para 2.24
33 Appendix 2, para 2.25
34 Appendix 1, para 137
35 Appendix 2, 10.20, 10.33.2
36 Appendix 2, para 2.25
38 Written Evidence 6x
39 Written Evidence 25xi
40 Written Evidence 6viii
41 Prosur is a company that creates and produces preservatives. Their product was used by Lynn’s to preserve bacon and ham products. See Appendix 1, Appendix 4 to the Memorandum.
44 Written Evidence 25iv
45 Written Evidence 6xiii
46 Written Evidence 25xi
47 Written Evidence 25xiii
49 Written Evidence 6iv
50 Appendix 1, paras 159–160
51 Written Evidence 6v
52 Appendix 2, paras 11.9-11.11
53 See paragraph 52 above.
55 Appendix 1, para 198
56 Appendix 1, para 196
57 Appendix 1, para 198
58 Written Evidence 43
60 Qq55–63; Qq94–97
61 Written Evidence 40
62 Written Evidence 25xxii
63 Appendix 2, para 2.38
64 Written Evidence 25xxii
65 Written Evidence 25xxii
67 Written Evidence 25xiv
71 Appendix 1, para 206
73 The Advisory Committee on Business Appointments—see paragraph 105 below.
74 Written Evidence 35
80 Appendix 1, para 235
82 Appendix 2, para 12.11
83 Written Evidence 6v
85 Appendix 1, para 234
86 Appendix 1, para 234
87 Appendix 1, para 242
88 Appendix 2, para 13.9
89 Written Evidence 49, Letter from Mr Paterson to the Committee, dated 20 September 2021.
90 Written Evidence 49, Letter from Mr Paterson to the Committee, dated 20 September 2021.
91 Written Evidence 50, Letter from Mr Paterson to the Chair dated 30 September 2021
92 Written Evidence 50, Letter from Mr Paterson to the Chair dated 30 September 2021
93 Written Evidence 50, Letter from Mr Paterson to the Chair dated 30 September 2021
94 Written Evidence 50, Letter from Mr Paterson to the Chair dated 30 September 2021
95 Appendix 2, para 2.51
96 Written Evidence 25xxiv; Written Evidence 25xxv
97 Written Evidence 25xxiii; Written Evidence 25xxvi
98 Appendix 2, paras 13.6–13.8
99 Committee on Standards, Dame Margaret Hodge, First Report of Session 2017–19 (HC 591)
101 Written Evidence 50, Letter from Mr Paterson to the Chair dated 30 September 2021
104 Appendix 1, paras 239–240
105 In the past five years, the Commissioner and her immediate predecessor have not upheld 16 allegations into which they have initiated an investigation. Details of allegations not upheld are published on her website at the conclusion of her investigation.
106 Appendix 1, Appendix 3 to the Memorandum
107 Written Evidence 16
108 Appendix 1, Appendix 3 to the Memorandum
109 Appendix 1, Appendix 3 to the Memorandum
110 Written evidence is published on the Committee’s webpages.
111 Mr Paterson’s principal written evidence to the Committee, in the form of a statement, is published as Appendix 2 to this report. All other written evidence provided by Mr Paterson is published on the Committee’s website.
112 Appendix 2, paras 5.1–5.4
113 Appendix 1, Appendix 3 to the memorandum, para 8(b)
114 Appendix 1, Appendix 3 to the memorandum, para 8(b)
115 Written Evidence 43
116 Appendix 1, Appendix 2 to the Memorandum
117 Written Evidence 44, Letter from the Parliamentary Commissioner for Standards to Mr Owen Paterson dated 16 July 2021
118 Written Evidence 45, Letter from Mr Paterson to the Clerk dated 23 July 2021
120 Appendix 1, para 58
122 Written Evidence 44, Letter from the Commissioner to Mr Paterson dated 16 July 2021
123 Q82, Q88, Q127
124 Written Evidence 45, Letter from Mr Paterson to the Clerk dated 23 July 2021
125 Appendix 2, para 4.6
126 Appendix 2, para 8.7.3
127 Appendix 2, para 9.24
128 See paragraph 127 above.
129 Written Evidence 46, Letter from Mr Paterson’s solicitor to the Clerk, dated 25 August 2021
130 Written Evidence 49, Letter from Mr Paterson to the Clerk, dated 20 September 2021.
131 Appendix 2, 2.55–2.56
132 Written Evidence 47, Letter from the Commissioner to the Clerk dated 2 September 2021
133 Written Evidence 50, Letter from Mr Paterson to the Chair, dated 30 September 2021
134 The Commissioner’s request to the FSA for further FOI material is published as Written Evidence 34
135 Written Evidence 51, Email from the Commissioner to the Clerk, dated 4 October 2021
136 Appendix 2, para 6.3.1
137 Written Evidence 3
141 Written evidence 17
142 Written Evidence 18
143 Appendix 1, Appendix 3 to the Memorandum, para 6(a)
144 Written Evidence 43
145 Written Evidence 45, Letter from Mr Paterson to the Clerk dated 23 July 2021
146 Written Evidence 45, Letter from Mr Paterson to the Clerk dated 23 July 2021
148 Guide to the Rules, Chapter 4, paragraph 13
149 Q2, Q127
150 Hansard HC Deb Thursday 9 September 2021, Vol 700 Col 500
Published: 26 October 2021 Site information Accessibility statement