THE HOUSE OF LORDS' INQUIRY INTO ALLEGATIONS
MADE BY THE SUNDAY TIMES
Appeal of Lord Snape to the Committee
for Privileges
INTRODUCTION
1. This is the written appeal of Lord Snape
to the Committee for Privileges against the findings made against
him in the Report of the Sub-Committee on Lords' Interests in
this matter ("the Report/R").
2. This written Appeal has been prepared
by Lord Snape's lawyers acting on his instructions. For this reason
it refers to Lord Snape in the third person.
3. The matter came before the Sub-Committee
by way of a complaint by the Leader of the House of Lords (Report
para 8). It has been treated as a complaint that Lord Snape breached
the Code of Conduct as a result of his conversation with the undercover
Sunday Times journalists on 22 January 2009.
4. Lord Snape was examined by the Sub-Committee
on 10 March 2009.
5. Prior to his attendance before the Sub-Committee
Lord Snape's understanding of the purpose of the Sub-Committee's
inquiry was derived from the Chairman's letter to him of 13 February
2009 (enclosing transcripts of his conversations with the Sunday
Times journalists). This stated:
... The purpose of the Sub-Committee's inquiry
is to determine whether the facts apparently disclosed by the
tapes and transcripts constitute any breach of the Code, in particular
paragraph 4 read in the light of paragraphs 5, 6, 8, 10 and 12.
The Sub-Committee will be concentrating on whether any of the
four Members concerned can be shown from the material in the tapes
and transcripts to have breached in particular paragraph 4(c)
of the Code. The Sub-Committee will be considering whether a Member
who negotiated a fee with a view to agreeing to breach paragraph
4(c) would be acting on his "personal honour" and would
thus be in breach of paragraph 4(b) of the Code in the light of
the Nolan principles ....
6. At the outset of the examination on 10
March 2009 the Chairman of the Sub-Committee indicated that:
... What we want to do this afternoon is to
establish the facts before coming to our conclusions based on
our interpretation of the Code of Conduct. We will be reporting
to the Committee of Privileges where you have a right of appeal....
7. The sections of the Report dealing with:
— the factual background to the complaint;
— the interpretation of the Code of Conduct;
and
— the Sub-Committee's analysis of and conclusions
on his conduct;
were sent to Lord Snape on 23 April 2009. They
were received on 24 April 2009. The covering letter from the Registrar
of Lords Interests required this written appeal to be submitted
to the Clerk to the Committee for Privileges not later than noon
on Tuesday 5 May 2009.
8. Lord Snape wishes to record his concern
that he was expected to prepare this appeal in just five working
days, when it has taken nearly three months for this matter to
progress from the complaint, on 25 January 2009, to service of
the Report on him. Five working days is an unnecessarily short
period of time in which to consider the Report and prepare this
important document. He and those assisting him have done their
best in the limited time allowed. However he considers this aspect
of the procedure to have been unfair.
9. The procedure entitled "How Complaints
are Dealt with" indicates that:
13. The Member complained against has
a right of appeal to the Committee for Privileges against the
findings of the Sub-Committee.
14. The Committee for Privileges hears
any appeal and the Member has the right to appear before it.
15. The Committee for Privileges reports
to the House ...
10. Paragraph 35 of the Fourth Report from
the Committee for Privileges[1]
indicates that:
... The Committee will not normally reopen
the Sub-Committee's investigation. Rather the members of the Committee
will use their judgment to decide whether, on a balance of probabilities
they endorse the conclusions of the Sub-Committee ...
THE RELEVANT
PROVISIONS OF
THE CODE
11. These provide:
1. The purpose of this Code of Conduct
is:
(a)to provide guidance for Members of the House of
Lords on the standards of conduct expected of them in the discharge
of their parliamentary and public duties;
(b)to provide the openness and accountability
necessary to reinforce public confidence in the way in which Members
of the House of Lords perform their parliamentary and public duties
....
(a)must comply with the Code of Conduct;
(b)should act always on their personal honour;
(c)must never accept any financial inducement as
an incentive or reward for exercising parliamentary influence;
(d)must not vote on any bill or motion, or ask
any question in the House or a committee, or promote any matter,
in return for payment or any other material benefit (the "no
paid advocacy" rule) ....
What is a relevant interest?
9. The test of relevant interest is whether
the interest might reasonably be thought by the public to affect
the way in which a Member of the House of Lords discharges his
or her parliamentary duties.
10. The test of relevant interest is therefore
not whether a Member's actions in Parliament will be influenced
by the interest, but whether the public might reasonably think
that this might be the case ....
18. The operation of the register shall
be overseen by a Sub-Committee of the Committee for Privileges
on Lords' Interests and the Registrar shall consult the Sub-Committee
when necessary. The Registrar is available to advise Members of
the House. A Member who acts on the advice of the Registrar in
determining what is a relevant interest satisfies fully the requirements
of the Code of Conduct ....
THE NOLAN
PRINCIPLES
12. The Seven Nolan Principles are:
Holders of public office should take decisions
solely in terms of the public interest. They should not do so
in order to gain financial or other material benefits for themselves,
their family, or their friends.
Holders of public office should not place
themselves under any financial or other obligation to outside
individuals or organisations that might influence them in the
performance of their official duties.
In carrying out public business, including
making public appointments, awarding contracts, or recommending
individuals for awards or benefits, holders of public office should
make choices on merit.
Holders of public office are accountable for
their decisions and actions to the public and must submit themselves
to whatever scrutiny is appropriate to their office.
Holders of public office should be as open
as possible about all the decisions and actions they take. They
should give reasons for their decisions and restrict information
only when the wider public interest clearly demands.
Holders of public office have a duty to declare
any private interests relating to their public duties and to take
steps to resolve any conflicts arising in a way that protects
the public interest.
Holders of public office should promote and
support these principles by leadership and example.
LORD SNAPE'S
CASE BEFORE
THE SUB-COMMITTEE
AS TO
THE MEETING
ON 22 JANUARY
In general
13. This is clear from his written submissions
of: 11 February 2009 ("WS1"); 17 February ("WS2");
5 March 2009 ("WS3"); and his oral evidence on 10 March
("Ev"). In summary:
(a) He refused to table or arrange to table an
amendment to any bill very early on in the conversation;[2]
(b) He stated that he did not think he would
be able to take a retainer to help the PR company to amend the
Business Rates Supplements Bill ("BRSB") and that he
would need to take advice from the Registrar before doing so,
given that its client had an interest in the amendment;[3]
he referred several times to the need to check the position with
the Registrar;[4]
(c) any steps he took would be dependent on an
affirmative response from the Registrar;[5]
he would not approach anybody unless [he] had first cleared
the matter with the Registrar ...;[6]
(d) The discussion was a tentative one;[7]
(e) He was not negotiating with the PR company
during the meeting;[8]
(f) If the PR company had made written proposals
to him for a retainer he would have had further discussions with
them and taken advice from the Registrar before taking it any
further forward;[9]
(g) He has always been very careful to act in
accordance with the Code. He has never before faced an allegation
of misconduct either as a Member of the House of Commons (from
1974-2001) or the House of Lords (2004-09);[10]
(h) He never had any intention of breaching the
Code and was at all times acting on his personal honour.[11]
Particular points/answers
14. Lord Snape also explained his belief
that the suggested general exemption from the supplementary rate
for all new businesses had merit.[12]
He believed that the Code would be interpreted so as to allow
him, whilst retained by the PR consultancy, to advocate such an
amendment on this basis. He thought that this would be so even
though a client of the PR company would benefit from the amendment.
15. However he was at pains to emphasise
both to the journalists and to the Sub-Committee that he would
have checked this understanding of the Code with the Registrar
before acting. He also understood that he might well have to
declare that you have certain clients in this particular field
... And put it in the Register ... See Ev Q193 referring to
his explanations to the journalists at the bottom of p 7 of 33
and the top of p 8 of 33. He considered that he could only
move a general amendment provided the Registrar of Members' Interests
had been consulted and given his approval ... Ev Q196.
16. Similarly he could only speak to a member
of the House of Commons about a general amendment provided he
had got the permission of the Registrar ... and ... that I
tell any Member of the House of Commons if I had any sort of consultancy
with these people ... Ev Q210.
17. See generally Ev Q222-234 which show
Lord Snape taking the Sub-Committee though the various passages
in his conversation with the journalists where he emphasised that
he would have to clear any action he took with the Registrar.
The final question and answer, concerning entering into an agreement
with the PR company, is important:
... You are saying at this stage that you
would not have made an agreement without clearing it with the
Registrar.
Lord Snape: Not only that, I would
not have signed up for anything|until I had seen their proposals
in writing and that was what I said to them before I left ...
18. Lord Snape emphasised his general understanding
that:
... if the Registrar gives permission then
I am covered under 4(c). If I am wrong on that then I stand corrected
... Ev Q213.
In support of this understanding he pointed
to Code para 18 indicating that ... A Member who acts on the
advice of the Registrar in determining what is a relevant interest
satisfies fully the requirements of the Code of Conduct ... Ev
Q240.
19. He explained to the Sub-Committee that
he had a declared consultancy with the transport company, First
Group. He had previously tabled but not moved amendments to the
Local Transport Bill. Q195. See also at Q281.
THE REPORT
The "no-paid-advocacy rule"
20. The Sub-Committee indicates that it
has applied:
... a very high standard of proof, falling
just short of the criminal standard. The Sub-Committee decided
that, in making its findings, it would have to be satisfied, against
this high standard, that any breaches had been established to
its complete satisfaction. A key question for us was: did the
evidence show that the Lord in question expressed a clear willingness
to breach the Code of Conduct? [R para 20].
21. The Sub-Committee read Code para 4 in
the light of Code paras 1 and 9-10, concluding that:
... Members are ... bound to act on their
personal honour in the context of the public's perceptions of
how a Member of the House of Lords ought to behave ... [R
para 42].
22. It noted that:
... Some of the terms such as "personal
honour" have been used for centuries. Other terms such as
"exercising parliamentary influence" have more recent
origins. It has not been thought necessary to define these terms
... [R para 43].
23. At paragraphs 45-50 the Sub-Committee
set out its view of the meaning of Code paras 4(c) and 4(d). In
essence the Sub-Committee concluded that para 4(d) gives examples
of the kind of activities falling under the no-paid-advocacy rule,
which is more generally described by paragraph 4(c) ... [R
para 45].
24. At R para 46 the Sub-Committee stated:
... Paragraph 4(c) means that Members of the
House of Lords may not use their position as members of Parliament
to influence Parliament by any means direct or indirect, including
through other Members, MPs, Ministers, officials or civil servants,
in return for payment by an outside body ...
THE SUB-COMMITTEE'S
CONCLUSIONS ON
LORD SNAPE—WITH
HIS RESPONSES
25. The former are at R paras 119-125 and
will be taken as read.
The "mistaken" belief
26. The Sub-Committee concluded that Lord
Snape was mistaken in his belief that subject to the advice
of the Registrar, he was permitted to exercise influence in Parliament
on behalf of a client or employer provided the action was not
for the exclusive benefit of that client or employer ... R
paras 119.
27. Lord Snape's belief, as set out at paragraphs
14-15 above, may have been mistaken. Whether it was or not would
have been resolved in his intended discussions with the Registrar.
Lord Snape will accept any ruling of this Committee to the effect
that it was mistaken, in the same way that he would have accepted
such a ruling of the Registrar. The important point for the purposes
of this appeal, expanded upon below, is that it was a genuine
belief.
28. The introduction into this formulation
of his belief by the Sub-Committee of the words on behalf of
a client or employer ... is contentious. This is not how the
matter was put when Lord Snape gave his evidence. See for example
Q.193-195. Here the issue was whether he could promote a general
amendment, which he supported on its merits, if it benefited either
a company with which he had a declared consultancy or one of its
clients. This subtle but important misrepresentation of Lord Snape's
belief resurfaces in the most damning conclusions of the Sub-Committee
(see below).
Lord Snape's "enthusiasm for the amendment"
29. The Sub-Committee asked itself why Lord
Snape wanted to be paid to promote the amendment. It concluded
that Lord Snape's enthusiasm for the amendment was inspired
by the prospect of payment by MJA, in breach of the Code ... R
paras 121-123. However, nowhere in the conversation with the undercover
journalists did Lord Snape say he wanted to be paid to promote
the amendment. On the contrary he told the journalists that:
... A newly set up business anywhere in the
country ought to be exempt from this supplementary rate because
of the high cost of starting up and the need for Government to
encourage small businesses—small and large—in the
current economic situation ... Hansard transcript p 9.
This is a perfectly reasonable opinion to express.
It is certainly not one from which an inference can be drawn,
from its content, that it must have been insincere. The government
itself had reduced VAT to help businesses to weather the recession.
This Committee must remember that the reporters were engaged in
a clever "sting". Their purpose was to engineer a conversation
which the Sunday Times could suggest showed Lord Snape
as willing to breach Code 4(c) and/or (d). They did so by postulating
an amendment which he might well consider meritorious, saying
that they wanted to pay him a retainer and then asking him about
particular things he could do as a member of the House of Lords,
to promote the amendment to the BRSB. See for example the Hansard
transcript at:
p 7: is that something a) you would do, or
b) you would be able to do?
p 11: Is that something you would be able
to do? (speak to someone in the House of Commons)
p 13: would you be able to get an amendment
tabled on the Committee, do you think ...
p 18: Is it worth speaking to the Bill team
at all, do you think?
30. The suggestion by the Sub-Committee
that Lord Snape's views on the merits of the postulated amendment
were not genuine comes purely from this context. But this had
been contrived by the undercover journalists to suggest insincerity.
These rather cynical conclusions of the Sub-Committee are unfair
and are not supported by the evidence.
Lord Snape's decision not to move the amendments
to the Local Transport Bill
31. The Sub-Committee used Lord Snape's
own account to it of this episode to suggest that, in the case
of the undercover journalists, Lord Snape was deceiving himself
if he believed that amendments to benefit an individual client
of MJA would be acceptable or be seen to be acceptable, provided
a wider public interest was served, because only a few months
before he had rejected such a possibility in the case of First
Group ... This reasoning is then used to justify the key conclusion
that Lord Snape was so keen to win a contract with MJA that
in conversation with them he was led to a point beyond what he
had previously considered to be prudent and in doing so he showed
a willingness to breach the Code ... R para 123.
32. This formulation contains the same subtle
but important misrepresentation of Lord Snape's view identified
at paragraph 28 above. Lord Snape did not believe that amendments
to benefit an individual client would be acceptable (emphasis
added). He believed that he might be allowed by the Registrar
to move a general amendment which he considered in the public
interest notwithstanding the declared connection between the PR
company and its client who would benefit. This is very different.
33. However there is a more fundamental
objection to this reasoning. What Lord Snape said at Ev Q195 was:
... I actually did table two amendments to
the Local Transport Bill ... which I did not move because I felt,
on reflection, that it might be said I was benefiting a company
for which I worked, that is First Group ... (emphasis added).
What he meant by this is, with respect, obvious.
His consultancy with First Group had been declared and restated
during the debates on the Local Transport Bill (see Q194). On
reflection he felt that if he moved the amendments in what he
believed was the public interest, others might nonetheless think
that he was doing so in order to benefit First Group. He wanted
to avoid this perception. In the case of a declared consultancy
for the PR company and the postulated BSRB amendment there would
have been less risk of such a perception (ie because the PR company
would not have an apparent interest in the BSRB amendment in the
way that First Group did in Local Transport Bill amendments).
But it does not mean that the same concern would not in due course
have prevented Lord Snape acting for precisely the same reason.
The Registrar would presumably have raised this concern when he
told him of the PR company's client. He may well have decided
himself that "on reflection" the same concern arose
in this case. It is ironic that an episode that Lord Snape described
to the Sub-Committee to demonstrate his concern to be seen to
complying with the Code has been used against him in an attempt
to demonstrate his bad faith in this instance. See also at R para
124 where this is done once again.
Lord Snape expressed a clear willingness to breach
the Code of Conduct
34. This finding is made at R para 125.
35. But again Lord Snape is entitled to
a more accurate finding. Lord Snape did not express to the journalists
a willingness to break the Code, clear or otherwise. He
was at pains to emphasise to the journalists that he wanted to
stay within the Code and that he would consult with the Registrar
before actually doing (as opposed to talking about doing) anything.
He expressed his willingness to do things, following any retainer,
which he honestly believed would be within the Code in the circumstances
set out at paragraphs 14 and 15 above (including disclosure to
and approval by the Registrar).
The last word
36. At the end of its conclusion on Lord
Snape the Sub-Committee suggests that Lord Snape came to realise
that the language he used with the journalists was misleading
even if not intended to mislead. It is suggested, by way
of example, that he should not have discussed approaching a junior
minister sort of behind the scenes.[13]
Part of Q276 is also set out and offered as another example of
this "realisation". However the opening words of Baroness
Manningham-Buller's question, which are omitted, are important.
She said: Obviously you would have referred to the Registrar,
but ... do you think with hindsight and on reflection that offering
to etc ... is within the Code of Conduct? (emphasis added).
The exchange, as set out at para 125, suggests that Lord Snape
was offering to this irrespective of whether it had been cleared
with the Registrar. When the question and answer are read in full
it is clear this is not the case.
What are the Sub-Committee's findings on the questions
identified in the Chairman's letter to him of 13 February 2009?
37. These are not apparent. There is no
determination as to whether Lord Snape has breached Code para
4(c). There is no determination as to whether he had negotiated
a fee with a view to agreeing to breach paragraph 4(c) nor
is there a determination therefore as to whether he would be
acting on his "personal honour" in such circumstances
or whether he would thus be in breach of paragraph 4(b) of
the Code in the light of the Nolan principles ...
38. Indeed there is not any explicit conclusion
as to whether Lord Snape has breached any particular provision
of the Code.
THE CORRECT
INTERPRETATION OF
CODE PARAS
4(B)-(D)
39. The Sub-Committee's view at R para 45
that Code para 4(d) gives examples of the kind of activities
falling under the no-paid-advocacy rule, which is more generally
described by paragraph 4(c) is surely wrong, although nothing
turns on it. Code 4(d) is, and is stated to be, the "no paid
advocacy rule". It is correctly described as such because
it envisages overt or direct acts of promotion. Code 4(c) is concerned
with actions on the part of the member which seek imperceptibly
or by indirect means to alter the conduct of Parliament in some
respect.
40. The act prohibited in (c) is "accepting"
(in the sense of taking or receiving) the financial inducement.
If it is accepted before the attempt to influence Parliament by
the Member it is an incentive to do so and if it is accepted
afterwards it is a reward for having done so.
41. The acts prohibited in (d) are those
listed therein.
42. The Sub-Committee observes at R para
43 that It has never been thought necessary to define Code
4(b). However this will not do in the modern era. It will certainly
not do if Members are to face proceedings of this sort based upon
Code 4(b) with the possibility of serious disciplinary sanctions,
such as suspension from the House, and inevitable damage to reputation
in the event that a breach is proved.[14]
It is a fundamental aspect of the duty of fairness in such circumstances
that disciplinary "offences" are clearly defined and
certain.
43. Lord Snape contends that the key word
in 4(b) is personal. A Member is thereby prohibited from
doing something which s/he knows or believes to be dishonourable.
44. If the House of Lords wishes to have
broader "base" offence in the Code, using a minimum
objective standard of conduct, it can introduce one (sufficiently
clearly worded). But Code para 4(b) does not achieve this aim.
THE GROUNDS
OF THIS
APPEAL
45. Given the lack of clarity in the Sub-Committee's
findings, it is not easy to formulate an appeal in the terms envisaged
in paragraph 35 of the Report from the Committee (see above).
Code paragraph 4(c)
46. If the Sub-Committee found a breach
of this provision, Lord Snape contends that on a balance of probabilities
this Committee should not endorse this conclusion. It was not
available to the Sub-Committee on the standard of proof which
they applied or the civil standard. Lord Snape did not do any
of the acts prohibited by Code 4(c), or indeed (d). He did not
take or receive any money from the two bogus PR representatives.
He simply spoke to them in his room. He did not do any of the
acts prohibited by Code 4(d).
Paragraph 4(b)
47. If the Sub-Committee found a breach
of this provision, whether on the basis that he negotiated
a fee with a view to agreeing to breach paragraph 4(c) or
on some other basis, Lord Snape contends that on a balance of
probabilities this Committee should not endorse this conclusion.
It was not available to the Sub-Committee on the standard of proof
which they applied or the civil standard.
48. The Sub-Committee accepted ... that
[Lord Snape] may have believed that moving a blanket amendment
was legitimate ... R para 125. This observation would presumably
extend to other acts amounting to "advocacy" of the
amendment undertaken in the circumstances described in paragraphs
14 and 15 above (ie he may have believed this too was legitimate).
49. However even this is not good enough.
Given that this case resolves itself to the question of whether
Lord Snape acted on his personal honour in engaging in
the conversation with the journalists, the Sub-Committee was not
entitled to duck the question of whether he did honestly believe
that he would be acting legitimately if he advocated the amendment,
believing it to be in the public interest.
50. The Sub-Committee also failed to appreciate
the significance for this provision of the Code of Lord Snape's
stated intention to discuss the circumstances with the Registrar
before acting.
51. At R para 124 the Sub-Committee observes
that his intention to do so should not be used as an excuse
to exempt a Member from his duty to exercise his own judgment
of what is proper. No doubt this is true. But Lord Snape was
not seeking to do this. He had exercised his judgment in reaching
the view identified at paragraphs 14 and 15 above. He simply wanted
to check it with the Registrar. He can hardly be criticised for
this. What is the point of making the Registrar available for
advice, as per Code para 18 or generally, if Members are to be
criticised for seeking it?
52. But none of this is to the point under
Code para 4(b). The question for the Sub-Committee here was—"can
we gainsay Lord Snape's assurance that he would have gone to the
Registrar for advice?" It did not ask this question, let
alone answer it. If it had asked itself this question it could
only have come to one answer—"No". There is no
evidence to suggest that this was a false assurance. Moreover
he would not have raised this with the bogus PR representatives
if it had not been his intention to go to the Registrar for advice
and he simply wanted to advocate the amendment for money come
what may. This is because it might have discouraged them from
pursuing the proposed retainer.
53. It follows that no finding can properly
be made that, in speaking to the journalists, Lord Snape did anything
he knew or believed to be dishonourable in the context of the
Code and his membership of the House. He formed a view about what
he could legitimately do. If it was mistaken he may be criticised
for this but this is not a breach of Code para 4(b).
54. In short, Lord Snape did honestly believe
that he would be acting legitimately if he advocated the time-limited
exemption for the benefit of all new businesses, believing it
to be in the public interest. He did intend to check this with
the Registrar before acting. So he was not doing or saying anything
he knew or believed to be dishonourable in the meeting with the
journalists.
55. Although the letter from the Chairman
of the Sub-Committee of 13 February 2009 suggested that the Nolan
principles might be in play in relation to Lord Snape's conversation
with the journalists, it is not easy to see which principle/s
would be engaged. In particular, no decisions were being taken
(principle 1), Lord Snape did not place himself under any obligation
(in the language of the letter of 13 February no fee was negotiated—principle
2), nor was any public business being carried out (principle 3).
CONCLUSION
56. Lord Snape is entitled to a clear and
fearless decision from this Committee to the above effect. Such
a decision should be reported by this Committee to the House.
He might be criticised for making a mistake, or not properly understanding
the rules. However this would be harsh since the House allows
parliamentary consultancies (see R para 60) and the difficult
distinctions/issues thrown up by his understanding of the Code
(set out at paragraphs 14 and 15 above) are not addressed at all
in the Code. However it cannot be said that simply having the
discussion with the journalists, on the basis of this honest but
mistaken understanding of the Code, was a breach of the Code.
Gavin Millar QC
1 The Code of Conduct; procedure for considering complaints
against Members, HL Paper 205 (see 2007-08). Back
2
WS 1 para (4); Ev Q178. Back
3
WS 1 paras (6), (7); WS3 p 1. Back
4
WS3 p 2. Back
5
WS3 p 3. Back
6
Ev Q175, Q177, Q243. Back
7
WS 1 para (11). Back
8
WS3 p 1; Ev Q244. Back
9
WS 1 para (13). Back
10
WS 1p.4; WS2. Back
11
WS2; Ev Q175/ Back
12
See Ev Q301 I cannot repeat too often, Mr Lord Chairman, to
you and your Committee that I thought so then and I think so now
... Back
13
See Hansard p 11 of 33. This comment was explained by Lord
Snape to the Sub-Committee at Q168-171. Lord Snape was discussing
the possibility of talking to a minister about what he considered
to be the general merits of exempting new businesses from the
supplement for a period. This was something he would only have
done with the permission of the Registrar and having disclosed
any consultancy (Q210). Back
14
It hardly needs to be emphasised that Lord Snape's reputation
has been badly damaged by events so far, and will remain so even
if he is found not to have breached the Code. Back
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