Examination of Witnesses
Committee on Standards in Public Life [Sir Christopher
Kelly and Mr Peter Hawthorne] (QQ 529-540)
Sir Christopher Kelly,
Chair, and Mr Peter Hawthorne, Assistant Secretary, Committee
on Standards in Public Life
Q529 The Chairman:
Sir Christopher, thank you very much for coming. You will have
gathered what we are trying to discover and what the Committee
is about. Would you prefer to make an opening statement or launch
straight into questions?
Sir Christopher Kelly:
In view of the shortage of time, I will make only two points.
The first is to introduce Peter Hawthorne, who is the Assistant
Secretary of the Committee on Standards in Public Life. The other
is to say that my committee has not yet spent a great deal of
time on this issue. Therefore, although I am delighted to be here
to offer what help I can, I suspect that in answer to most of
your questions I shall express a personal view rather than the
view of the committee as the whole, and therefore my answers will
have as much or as little value as that implies.
Q530
The Chairman:
Thank you very much. Perhaps I may ask the first question. The
White Paper notes: "The wisdom and experience of people who
are pre-eminent in their field and have done great things can
be of benefit to Parliament's consideration of legislation".
It proposes that such people should be appointed to the reformed
House. Are there distinctive issues of standards and propriety
around such appointments? What criteria would you have?
Sir Christopher Kelly:
Clearly the process is different from that of electing someone.
However, there is a precedent for appointments to the House of
Lords and I imagine that any arrangements that were made would
build on that. In particular, it would be extremely important
that there was transparency both in the process of those appointments
and in the reasons for them.
The Chairman:
The reasons for the appointments?
Sir Christopher Kelly:
Yes. I have in mind the fact that, when people other than political
appointees are appointed to the House of Lords, a citation giving
the reason why they are thought to be appropriate is made public.
The Chairman:
I do not think that that happens at the moment.
Sir Christopher Kelly:
It does happen at the moment, but not to the same extent in relation
to politically appointed Peers.
The Chairman:
I am advised that what I verily believed is true: one has no clear
idea as to why people are appointed to the House of Lords. Even
the Appointments Commission does not say: "We are appointing
Lord X because he has a particular skill in 1, 2, 3 or 4."
It is never as detailed as that.
Sir Christopher Kelly:
Then I stand corrected. My belief was that a citation was published.
The Chairman:
I am told that it is a job description of what they have done.
Sir Christopher Kelly:
Then we are using different words to describe the same thing.
Q531 The Chairman:
I am not sure about that. Do you think that there is any difference
if appointed Members are part-time or full-time?
Sir Christopher Kelly:
Do you mean that there must be a difference in respect of their
ability to do other things at the same time as being a Member
of the upper House?
The Chairman:
How much do you think that that should be taken into account?
Sir Christopher Kelly:
I think that that is one of the difficult issues that will have
to be addressed. On the one hand there will be an issue about
whether you are creating two types of Member of the House of Lords.
On the other hand it seems that a key issue will be the extent
and manner in which you handle the potential conflicts of interest
of people who, if they are appointed part-time, wish to continue
doing their existing jobs.
The Chairman:
The question is about not only conflict of interest but keeping
on top of the job that they are doing. A doctor would need to
keep very much on top of his specialty.
Sir Christopher Kelly:
Indeed.
Q532
Lord Trefgarne:
Are you consulted at present on any appointments to the House
of Lords?
Sir Christopher Kelly:
No, there is a separate commission chaired by a Member of the
upper House.
Lord Trefgarne:
So you are not consulted.
Sir Christopher Kelly:
Not at all. I would not expect to be.
Q533
Baroness Young of Hornsey:
Would a full-time Chamber in which most Members were elected provide
an opportunity to look at issues around the approach to standards
and propriety? In other words, do you think that the current standards
around propriety, transparency and so on are fit for purpose,
or is there a need to look at or change how they might operate
in the hybrid House that has been proposed?
Sir Christopher Kelly:
I think that the principles remain exactly the same. They are
the seven principles of public life. The public's expectations
also remain the same. There is potential ground for giving some
thought to the application of those principles in the particular
circumstances of a newly constituted House of Lords.
Baroness Young of Hornsey:
Would you care to elaborate on that?
Sir Christopher Kelly:
Well, I am not entirely sure what the circumstances might be,
pending decisions that are yet to be taken. However, there will
be issues such as the one we have just discussed about how, if
you wish to continue to have in the House of Lords people who
are also active in other jobs, you will handle potential conflicts
of interest.
The Chairman:
Well, we handle that problem now. In theory it could happen at
any moment, but on the whole it is handled reasonably well in
the Lords.
Sir Christopher Kelly:
That is also my impression.
The Chairman:
So I do not think that that will be a great problem in the future.
I am more worried about a 15-year term; you serve 15 years and
then come out, or something of the sort. There is a question of
intellectual staleness, if I may put it that way. It is rather
important. You appoint somebody because he has a particular skill
in a particular area, but it will not last for 15 years.
Sir Christopher Kelly:
That is not a standards issue, but I can understand why you might
think that it is an issue. A lot will depend on the age at which
people are appointed.
Q534
Baroness Andrews:
This may be another version of the same question, I am afraid.
You specifically mentioned the notion of two types of Members.
The code of conduct that we presently operate under is still sometimes
quite difficult to implement as we approach what we choose to
speak on and how we choose to represent things. It is, of course,
entirely about conflicts of interest. Perhaps I may press you
further on whether the code would have to be revisited precisely
because we would have a genuine difference in the ecology of the
House if there were two sets of Members coming from different
routes.
Sir Christopher Kelly:
I am not sure whether the important difference would be between
the two sets of Members coming from different routes. The Lord
Chairman suggested that one set of Members would be more part-time
than the other set. If that happened, it would create a potential
difficulty. It would be most unlikely that the code of conduct
would not need to be looked at again if the composition of the
House changed as radically as is proposed.
Baroness Andrews:
Would the minority of people who worked part-time, were chosen
on the basis of their expertise and were expected to go on deploying
that expertise and keeping up to date come under the scrutiny
of the rest of the House, for example, precisely because they
were there to do that particular job? At the moment we all do
that job in theory.
Sir Christopher Kelly:
If the question is whether the House as a whole would have to
have a mechanism for making sure that people who were appointed
stayed within reasonable bounds in handling their conflicts of
interest, the answer of course must be yes.
Q535 Bishop of Leicester:
The draft Bill gives a reformed House—if there is an 80:20
split—greater disciplinary powers but exempts Bishops from
those powers. The Archbishops in their submission indicated that
the Bishops and the church seek no such exemption. Do you see
any reason why Bishops should be excluded from such disciplinary
powers?
Sir Christopher Kelly:
I suspect that there are issues buried in that question that are
well beyond me. I would have expected the default position to
be what the Archbishops proposed—namely, that Members of
the House should be treated in the same way unless there was good
reason to do otherwise.
Q536
Lord Trefgarne:
I am concerned about the position of those who will be appointed
to the new House for the specific purpose of being Ministers and
will leave when they cease to be Ministers. What arrangements
will there need to be to ensure that they can return to their
earlier profession as necessary? Otherwise, they will be unemployable.
Sir Christopher Kelly:
I am aware that that issue has caused problems in the past. I
am not an expert on the way in which the Advisory Committee on
Business Appointments works. In principle, as I understand it,
it is able to take a considered view on whether someone can legitimately
and immediately take up a role on leaving either House without
creating an actual or perceived conflict of interest. There are
clearly some roles that you would not want someone to go to. The
obvious example is that you would not want a Procurement Minister
immediately going to an organisation from which they had procured
services. On the other hand, clearly there are other roles where
no such real or perceived conflict of interest would arise. It
seems that the arrangement under which an independent but informed
body takes decisions on that ought to have the capacity to work
well and recognise different circumstances.
Lord Trefgarne:
It is going to be pretty difficult for, say, someone attracted
from the financial services industry to be a Minister if, at the
end of his five or 10-year period as a Minister, he cannot go
back to what he was once doing.
Sir Christopher Kelly:
Whether or not he or she can go back to what they were doing depends
a lot on the role that they performed as a Minister. If the alternative
is that someone should be able to perform a function as a Minister
that directly benefits, or might be seen as benefiting, the organisation
to which they go back, that would not be an admirable thing, either.
Lord Trefgarne:
Do you think that the problem can be handled?
Sir Christopher Kelly:
I think that it is a real problem and that the best way of handling
real problems like that is not to set down rigid rules but to
do very much as the present arrangements provide: that is to say,
have an independent body to scrutinise such appointments and take
a balanced view on where the balance of advantage lies.
Lord Trefgarne:
There is an existing organisation for senior civil servants, I
believe, who want to retire and take up business appointments.
Perhaps something similar could be devised for former Ministers
in the House of Lords.
Sir Christopher Kelly:
As I understand it, the Advisory Committee on Business Appointments
does apply to Ministers. I think that the difference used to be
that its rulings were obligatory for civil servants but not for
Ministers. Has that changed?
Mr Hawthorne:
No, it is still the same.
Lord Trefgarne:
The problem is, of course, that Ministers can be dismissed at
a moment's notice and it is a bit hard if there is no job there
that they are allowed to go to.
Sir Christopher Kelly:
I understand the issue. As I say, it is problematic.
Lord Trefgarne:
Is it not a problem that you ought to address?
Sir Christopher Kelly:
I have described the existing arrangements and suggested that,
if the right people are appointed to the committee—and I
have no reason to think that they would not be—it ought
to be possible to operate the system with a degree of flexibility
that both recognises the public interest in not allowing inappropriate
appointments to be made and at the same time recognises the need
for people to earn a living.
Lord Trefgarne:
I am looking at it from the position of the hapless junior Minister
tossed out in a reshuffle.
Ann Coffey:
It has always been the way.
Lord Trefgarne:
It does happen, you know.
Sir Christopher Kelly:
I understand the issue.
Lord Trefgarne:
Then could you please think of a solution for these people?
Sir Christopher Kelly:
As I tried to say, I am not aware of a better solution than the
one that exists at present with the Advisory Committee on Business
Appointments.
Lord Trefgarne:
Three months' pay is what we get.
Q537 The Chairman:
Perhaps I may ask a question that may be slightly tangential but
is on this point. The ministerial code, as I understand it, prohibits
any lobbying by former Ministers for two years. What is lobbying?
Have we a workable definition yet?
Sir Christopher Kelly:
No.
The Chairman:
So how is it done—by the length of the Chancellor's foot?
Sir Christopher Kelly:
By what?
The Chairman:
I asked whether it is done by the length of the Chancellor's foot.
It is what they used to say about equity jurisdiction in the courts
a few centuries ago. I am sorry about that professional jargon.
Sir Christopher Kelly:
I apologise for not recognising the allusion.
The Chairman:
No, I should apologise. Is it a personal, subjective view? How
do you decide what is lobbying?
Sir Christopher Kelly:
In the end it has to be slightly subjective and has to rely on
the common sense of both parties involved.
The Chairman:
The Chancellor's foot is not very long now. Lord Norton?
Lord Norton of Louth:
My question has been covered.
The Chairman:
Mr Hunt?
Q538 Tristram Hunt:
Lord Trefgarne asked my main question. In terms of oversight of
the Appointments Commission, we talked last week of a committee
of MPs and Peers to oversee the commission. Do
you have any thoughts on this?
Sir Christopher Kelly:
It is difficult to conceive that any model for the oversight of
an independent body that nevertheless provides sufficient accountability
is going to be perfect. At first sight, the model suggested in
the Bill seems as appropriate as any that I can think of.
Q539 Lord Tyler:
Sir Christopher, you said at the beginning that your committee
had not yet looked at the Bill and the White Paper. However, you
recently published a very important document on political party
funding. Through the centuries, as you identified, there has always
been a connection between political patronage and political financial
support—I am putting it as neutrally as I can—and
you made some important recommendations. Is it your view that
whatever the other outcomes of this exercise, we ought to be able
to deal with that problem as a result of the reforms because in
future there will not be the opportunity for political patronage
of that sort?
Sir Christopher Kelly:
If by political patronage you mean appointment to the upper House—because
there are plenty of other ways in which financial support for
a party can be translated into inappropriate advantage—then
at least that potential avenue should be brought to an end.
Lord Tyler:
Does the work that you did on the issue—obviously, no one
else has done it recently—bring into focus the fact that
the vast majority of active Members of the current House are political
appointees? I hold up my hand; I am one. Does that mean that on
the whole your view is that it would be beneficial to have an
appointments system that was completely separate from political
activity of any sort, given an 80:20 composition?
Sir Christopher Kelly:
No, I am not sure that I necessarily take that view. The existing
Appointments Commission has on it some members appointed because
they have a political background. My own committee has on it people
appointed directly by the political parties because they have
the expertise and the understanding to help us. The Electoral
Commission has recently moved to the same model, despite resisting
it initially, and finds it potentially quite useful. I see some
advantage in an Appointments Commission or whatever body is set
up still having some people on it who have political experience.
I think that it helps sometimes to have people with lots of experience
who are not necessarily expecting to be appointed to the government
Benches.
Q540
Lord Rooker:
Sir Christopher, I hope that you do not feel that you have been
put in the dock. I got the sense from some of your answers that
bodies other than yours are responsible for the issues that we
raised today. Whether there is a reformed House of Lords on an
80:20 or 100 per cent elected model, or if it stays the same,
given the role of the Lords in legislating, primarily, and its
work in the Chamber in debates, and given the role of Members
of Parliament, why should there be a difference between the way
in which Members of the Lords are treated in terms of the requirements
to have openness and good standards of conduct in public life?
When I arrived here, there was no Register of Members' Interests—and
God, they fought in the ditches to stop it. That was only 10 years
ago. Why should there be a difference between the two Houses when
Parliament as a whole is there to serve the people? I am not asking
you to do this; I am just asking for your view. Surely the same
set of rules should apply on lobbying or paid advocacy—nobody
is arguing against advocacy—and on a full declaration of
interests, including family or partners, which is now required
in a lot of public bodies following the Nolan principles. Why
should it be different? Why should there not be one collective
set of rules for Parliament?
Sir Christopher Kelly:
I could not agree more. I hope that I have not said anything to
imply anything different.
Lord Rooker:
No.
Sir Christopher Kelly:
I began by saying that of course the same principles should apply.
All the things that you mentioned, such as the prohibition on
paid advocacy and an open declaration of interests, should of
course apply to both Houses. The only thing that I was trying
to say was that at the margins there might need to be some difference.
Because of the existence of appointed Members of the House of
Lords it might be necessary to find another way of making sure
that the principles are followed. However, here I am referring
very much to the margins.
The Chairman:
Sir Christopher, thank you very much indeed. I think that perhaps
we got you here prematurely.
Sir Christopher Kelly:
No, I arrived because I wanted to hear what Sir Ian had to say.
The Chairman:
Was it illuminating?
Sir Christopher Kelly:
I think that your questions were more illuminating than the answers.
The Chairman:
Thank you very much indeed.
| 
