Slow Progress in Parliament: The Eighth Report of the Committee on Standards in Public Life

Slow Progress in Parliament: The Eighth Report of theCommittee on Standards in Public Life

Rhoda James and Richard Kirkham�

Introduction

The House of Commons is at the heart of our democracy. The standards of conductobserved by its members are crucially important to the political well-being of the nationy Itis vital for the quality of Government, for the effective scrutiny of Government, and for thedemocratic process, that Members of Parliament should maintain the highest standards ofpropriety in discharging their obligations to the public which elects them. It is also essentialfor public confidence that they should be seen to do so.1

This was the viewpoint of the Committee on Standards in Public Life in its First Report in 1995,and few would disagree with the constitutional importance of the issue. Hence, it is reassuringthat in a recent review by the present Committee on Standards in Public Life, the WicksCommittee, it was found that the House of Commons scored well in its adherence to highstandards of conduct. However, it has long been observed that there is a marked differencebetween parliamentary standards in practice and parliamentary standards in the public eye, adifference that led Wicks in its Eighth Report to explore ways in which this shortfall could beaddressed.2 This note examines and evaluates the findings of Wicks and the subsequent responseof Parliament, arguing that in the long term a more radical reconstruction of the current,predominantly self-regulatory, arrangement is desirable.

Background

The history behind the introduction of the current regulatory system is welldocumented.3 In 1994, following a number of high profile incidents ofquestionable behaviour by MPs and amidst a growing atmosphere of publicdistrust, John Major’s Government was forced to address the issue of standards. Itdid so by setting up an advisory non-departmental body, the Committee onStandards in Public Life, a body initially chaired by Lord Nolan4 to examine thestandards of conduct of all holders of public office. The Committee has continuedto operate long after the original sitting of the Nolan Committee, with the result

� Centre for Socio-Legal Studies, Faculty of Law, University of Sheffield. We are very grateful toRobert Behrens, Secretary to the Wicks Committee, for his helpful comments on an earlier draft.All opinions and errors are our own. Since this note was submitted, the House of Commons havedebated the Eighth Report (26 June 2003). Where the motions passed in that debate have altered thesystem of parliamentary self-regulation we have amended this piece accordingly. Otherwise the noteconcentrates on the Eighth Report and the response of the Committee on Standards and Privileges.

1 The Committee on Standards in Public Life, First Report on Standards in Public Life, Cm 2850(1995), 20, paras 1 and 2.

2 The Committee on Standards in Public Life, The Eighth Report, Standards of Conduct in the Houseof Commons, Cm 5663 (2002).

3 See for instance, O.Gay, Parliamentary Standards, (House of Commons Library: Research Paper01/102, 2002) 7–10.

4 The practice has developed of referring to the Committee by its Chair. There have been threechairs to date, Lord Nolan (1994–1997), Lord Neill (1997–2001) and Sir Nigel Wicks (2001), andbetween them they have presided over 9 reports.

r The Modern Law Review Limited 2003. (MLR 66:6, November). Published by Blackwell Publishing Ltd.,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.906

that it has produced a number of reports covering many different areas of publicoffice. Even so, it is the First Report of the Committee that remains the mostinfluential, including as it does the ‘Seven Principles of Public Life’ that are nowwidely accepted as representing the benchmark of acceptable behaviour in thepublic sector.5

It was another lasting achievement of the First Report that represented the focus ofthe recent Wicks Committee review. In that First Report, the Nolan Committee madea number of recommendations aimed at addressing concerns regarding conductwithin the House of Commons.6 In a major constitutional step forward, theCommons accepted the bulk of the recommendations7 and in 1995 passed twostanding orders and a resolution to put into effect new self-regulatory arrangements.8

This resulted in the adoption of a Code of Conduct for Members of the Commons, arevamped select committee on Standards and Privileges (the Select Committee) todeal with complaints, and the establishment of a new post of Parliamentary Commis-sioner for Standards (the Commissioner) to aid investigation.Question marks still remained as to how the new system would work in practice,

but in a review by the Committee on Standards in Public Life in 2000 the systemwas given a broadly favourable report. Some further recommendations were made,9

but in the main they were not implemented by Parliament.10 Subsequent events,however, proved that the issue was still a live one. Not only did the Select Com-mittee hear a series of cases in the 1997–2001 Parliament in which it disagreedwith the conclusion of the Commissioner, but in 2001 Parliament failed to re-appoint the then Commissioner, Elizabeth Filkin. These events raised genuineconcerns amongst observers of Parliament as to the extent to which the Commonshad understood the full demands of the post-Nolan system of Parliamentaryregulation.Significantly, in producing its latest report, Wicks was forthright in reaffirming

its faith in the overall standards of conduct within Parliament and praised thework of the Commissioner and the Select Committee.11 But Wicks did note anumber of concerns.

5 These are selflessness, integrity, objectivity, accountability, openness, honesty and leadership, n 1above.

6 There was of course a system in place to regulate standards within the House before its acceptanceof the recommendations of the Nolan Committee. As events demonstrated, the system was notsufficiently strong to deal with serious cases of alleged misconduct.

7 Before introducing the Nolan reforms, the Commons considered two further reports produced bya specially constituted select committee of the House of Commons, the Select Committee onStandards in Public Life (HC 637 and HC 816 Session (94/95)).

8 Standing Orders 149 and 150 were passed on 6 November 1995. These describe the roles of theCommittee on Standards and Privilege and the Parliamentary Commissioner for Standards.The Code of Conduct for Members was introduced following a resolution on 19 July 1995, withthe final version being approved on 24 July 1996 (HC 688 (1995–1996)). The Code has since beenamended on 14 May 2002. For a summary of the Government’s and Parliament’s response to theNolan report see D. Oliver, ‘Standards of Conduct in Public Life-what standards?’ PL [1995] 497.

9 See the Sixth Report of the Committee on Standards in Public Life, Reinforcing Standards Cm 4817(2000).

10 The House of Commons did not debate the Sixth Report. Instead, the Committee on Standardsand Privileges responded to the Neill Committee when it produced its Fifth Report for the SessionHC 267 (2000–2001).

11 Alan Williams MP, a member of the Committee on Standards and Privileges, pointed out thatsince the introduction of the Commissioner, as of 13 May 2002, only four members had beensuspended for misconduct relating to their declaration of interests. A further five would have beensuspended if they had still been a Member of the House by the time their case was heard, oralevidence to the Committee, 13 May 2002 Cm 5663.

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First, there have been ongoing accusations that despite the introduction of theoffice of the Commissioner, the parliamentary self-regulatory process remainssusceptible to political abuse. This suspicion has been given some credence inrecent years due to the manner in which a few cases have been dealt with. Forinstance, in the Reid and Maxton cases, following an extensive investigation, theCommissioner found that the Fees Office of the Commons had been misled by thetwo MPs. But when the Select Committee looked at the case, whilst it was satisfiedwith the probity of the Commissioner’s investigation, it refused to uphold the com-plaints.12 The reason given was a technical one involving a difference of opinionbetween the Select Committee and the Commissioner as to the correct burden ofproof that should be used in such a case.13 Despite this explanation, it was felt bysome commentators that the seniority of the figures being investigated hadinfluenced the Select Committee’s decision.14

A related criticism refers to the apparent reluctance of the Select Committee tosupport the work of the Commissioner when the Commissioner has had problemsobtaining information from recalcitrant MPs.15 There have also been allegationsthat witnesses have been pressurised into withholding information.16 Thus eventhough the Select Committee has stated on a number of occasions that it would bewilling to accept any requests to order attendance and information,17 what seemsclear is that in some cases the long-winded procedure for forcing witnesses toattend has caused delay and hampered the manner in which the Commissioner hasbeen able to conduct an investigation.18

Events surrounding the termination of Elizabeth Filkin’s period of officeprovided further evidence of the weaknesses of the post. For many it was assumedthat Mrs Filkin’s initial three-year term of office would be automatically renewedfor another three years once it came to an end.19 However, amidst rumours ofdiscontent amongst senior MPs regarding the allegedly over-officious manner inwhich Mrs Filkin had gone about her business, the Speaker of the House informedher that she would have to reapply for her position in an open competition.Mrs Filkin refused to do so and her successor has since been appointed. Themanner in which she was treated has led many to question the ability of theCommissioner to be independent under present arrangements. Indeed, the

12 Second Report of the Committee on Standards and Privileges HC 89 (2000–2001).13 The Select Committee decided that the seniority of the figures being investigated meant that any

adverse opinion would have a particularly detrimental affect on their careers. Given the potentialfor a disproportionately high penalty resulting from an unfavourable decision by the SelectCommittee, in coming to a conclusion the Select Committee decided to use a higher burden ofproof than might otherwise have been adopted.

14 For an analysis of these and other suspicions, see R. Kaye, ‘Submission to the Committee onStandards in Public Life.’ Written evidence to the Committee 2/28. This can be found on theCommittee’s website at http://www.public-standards.gov.uk/ (last visited 24 June 2003).

15 Peter Preston, ‘If Westminster silences its own watchdog, we will all pay the price’ The Observer 24December 2000.

16 The three most quoted examples are the Reid and Maxton case, the Vaz case and the Gormancase, see n 3 above, 42–43.

17 A point made strongly to the Wicks Committee by the current Chairman of the Committee,George Young. Oral evidence to the Committee, 7 May 2002, see n 2 above.

18 n 16 above.19 The first Commissioner was Sir Gordon Downey who was appointed on 15 November 1995. In

evidence to the Wicks Committee Peter Bottomley MP suggested that Sir Gordon Downey wouldhave been given the opportunity to serve for two three year terms if he so chose (oral evidence tothe Committee, 8 May 2002, see n 2 above). As it happened he declined the offer and retired fromhis post in November 1998, to be replaced by Elizabeth Filkin on 15 February 1999. The latestincumbent is Sir Philip Mawer, who was appointed on 13 February 2002.

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impression this left behind at the time was that Parliament did not want to employa Commissioner who took the job too seriously.20

Further questions concern the apparent inadequacy of the present arrangementsto provide safeguards for those MPs subject to investigation. For example, thereare doubts as to the ability of the system to meet the standards of natural justicethat one would expect from a system that potentially imposes restrictions on civilliberties where penalties are enforced. There are questions regarding the ability ofan accused MP to cross-examine witnesses, the absence of a suitable appealmechanism against decisions of the Select Committee, an apparent reluctance onthe part of the Select Committee to accept a duty to give reasons, and doubtsregarding the neutrality of the Select Committee itself.21

Perhaps an issue of equal concern is that the public perceive the system as aweak and ineffective mechanism with which to regulate the conduct of Membersin such a vital institution as Parliament. The validity of these concerns is a matterof conjecture, and much progress has undoubtedly been made in the direction of aHouse of Commons that operates in a manner that respects the highest standardsof personal conduct amongst its members. However, as the Eighth Report of theCommittee makes clear, probably the most challenging issue that remains isthe need to convince the public that the improvements are real and not merelycosmetic.Of course this challenge to secure standards of conduct within a given social

organisation is not unique to Parliamentarians, it is a challenge that lies at the veryheart of the whole legal and constitutional enterprise. But within that enterprisetwo essential themes of law and regulation are pre-eminent and it is against thesethemes that the parliamentary disciplinary procedure needs to be assessed. First,where there is a system of regulation, it is necessary to safeguard justice for anyindividual accused of breaches of the rules. Second, if systems of law andregulation are established to further the interests of its users, to be successful in itsultimate aim it follows that a regulatory system needs to convince the regulatedand other relevant interested parties of its standards of performance.It is to provide such all round confidence that a fundamental principle of the

rule of law is that civil and criminal penalties should only be imposed on anindividual where the legal basis for doing so has been prospectively establishedand where the penalised party has had access to an independent and fair-mindedtribunal. But this does not entail that all civil rights need to be considered within acourt of law or even a tribunal, for the exact extent to which a process needs toincorporate the independent element is arguable. Thus whilst it is axiomatic thatcriminal proceedings should be heard by an entirely neutral and independenttribunal, the courts are still grappling with what Article 6(1) of the EuropeanConvention on Human Rights entails for civil rights.22 In this area of law there aremany remaining uncertainties. But what guidance there is would seem to suggestthat so long as proper weight has been given to the interests of those immediately

20 See for instance the evidence of Martin Bell, former MP and member of the Standards andPrivileges Committee, oral evidence to the Committee, 8 May 2002.

21 See the House of Lords/House of Commons, Report of the Joint Committee on ParliamentaryPrivilege, HL Paper 43/HC 214, (1998–99).

22 R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] UKHL 23; [2001]2 WLR 1389 HL, Runa Begum v Tower Hamlets London BC [2003] UKHL 5; [2003] 2 WLR 388HL and Runa Begum v Tower Hamlets London BC [2002] EWCA Civ 239; [2002] 1 WLR 2491 CA,R (on the application of Beeson) v Dorset CC [2002] EWCA Civ 1812; [2003] HRLR 11 CA toname but a few.



affected by the decision23 and provided that there is the facility for an independentreview of the process, then the courts are willing to allow a degree of deference tothe appointed decision making body. Furthermore, this degree of deference signifi-cantly increases where that body has been chosen by Parliament itself.24

There is undoubtedly room for manoeuvre in the design of appropriatemechanisms. This means that where a body is required to rule upon breaches of anorganisational code, it is perfectly possible and legitimate to design disciplinarymechanisms around the prevalent needs of the particular organisation underscrutiny and the nature of the civil rights involved. What does seem evident is thatwhatever the method adopted, ultimately the same basic questions need to beanswered to satisfy not only convention rights and traditional grounds of judi-cial review, but also wider constitutional expectations. For instance, is there asatisfactory system in place to identify, investigate and act upon breaches ofpredetermined standards of conduct? Does that system offer protection to theaccused in terms of their basic rights and interests? And does that system fulfilthe expectations of the stakeholders in the organisation, a group that will includethe wider public? It is in the light of this approach that we examine the findingsand recommendations contained in the Wicks report and the response of theHouse of Commons, in particular the reports produced in reply by the SelectCommittee and the House of Commons Commission.In producing its report Wicks made 27 recommendations that covered many

aspects of the system in place within the Commons to deal with complaintsregarding standards of conduct. The majority of the recommendations amount toa fine-tuning of the present system and were accepted by either the SelectCommittee or the House of Commons Commission. Some of the recommenda-tions were more far-reaching, were not so well received, and need to be discussedin more detail.

Self-regulation – the one and only approach?

Before going on to the detail of Wicks’s findings it should be understood that atthe heart of the matter is the question of whether or not the existing system of self-regulation meets required conditions and, if it does not, whether the entrenchedinterests in the Commons can be persuaded to accept some form of trulyindependent element grafted onto the existing system. Wicks was obviously veryconscious of the sensitivity of the issue for Parliament and sought to providereassurance that it wished to retain the main benefits of self-regulation. Thusone overriding theme that came out of the report was the emphasis that Wicksplaced on the importance of promoting a culture of respect for parliamentarystandards of conduct amongst Members.25

This emphasis on culture is unsurprising as one of the strongest cards in favourof self-regulatory systems in general is the benefit to be gained where there is asense of ownership of the regulatory system amongst the regulated. The argument

23 See for instance Laws LJ in Runa Begum CA, ibid, para 40. Note also that there is extensivedomestic jurisprudence already in this area under the common law judicial review head of naturaljustice or fairness.

24 See for instance Laws LJ in Beeson CA, n 22, para 19–22, Lord Bingham in Runa Begum HL,n 22, para 11.

25 n 2 above, chapter 4.



being that the most favourable scenario for obedience of regulation is where theregulated themselves can be encouraged to believe in and actively promote thepurposes that lie behind regulation. At present, there is an almost overwhelmingcommitment within the Commons to a continued reliance on self-regulation.Indeed, as if to demonstrate this, the Select Committee went out of its way todescribe how many of the recommendations put forward by Wicks as to how toimprove the culture within Parliament, were already in place.26

The argument most frequently cited in favour of parliamentary self-regulation isthe need to preserve the full scope of parliamentary privilege in the Commons.

Parliamentary privilege consists of the rights and immunities which the two Houses ofParliament and their members and officers possess to enable them to carry out theirparliamentary functions effectively. Without this protection members would be handicappedin performing their parliamentary duties, and the authority of Parliament itself inconfronting the executive and as a forum for expressing the anxieties of citizens would becorrespondingly diminished.27

Robin Cook, then Leader of the House, in his evidence to Wicks expressed theprevailing feeling of MPs that parliamentary privilege was a necessary con-comitant of parliamentary sovereignty. The cogency of this view was challengedbefore Wicks, however, by academics, including Professor Dawn Oliver andourselves, who argued that while Parliament was indeed sovereign in the sense ofbeing the supreme law-making body, the system for judging the fitness of MPs totake part in the law-making process could properly be separated from, and neednot affect, the sovereignty of that law-making process and the consequent doctrineof parliamentary privilege.28

But for most Parliamentarians any move away from self-regulation towardsindependent oversight, which would carry with it the danger of potential judicialintervention, is constitutional heresy. For instance Wicks heard evidence from onewitness warning of the dangers of ‘judicial tanks on the Parliamentary lawn.’29 Onthe other hand, it is difficult to see how self-regulation of the House of Commonscan operate effectively or fairly without at least an element of independent review,given the danger of capture of the regulatory machinery by the various interests inthe House, be they governmental or party.30 On this view it is unrealistic to expectthat the autonomy of a self-regulatory system would necessarily be respectedwhere it is operating against those powerful interests, and equally that thepublic are unlikely to be convinced of the fairness of a system where the deci-sion makers in individual cases are interested persons.31 Nevertheless, for the timebeing, Parliament holds all the cards, and it is apparent that there is no internalmomentum in favour of a significant change in the direction of quasi-externalscrutiny. Aware of this pressure, Wicks concentrated its energies on looking atways to improve the current structure rather than recommending radical overhaul.

26 Second Report of the Committee on Standards in Privileges HC 403 (2002–2003), paras 2–10.27 n 21 above, para 3.28 Professor D. Oliver, ‘Regulation of Standards of Conduct in the House of Commons’, Written

Evidence to the Wicks Committee, 20/13, and R. James and R. Kirkham, 20/34, see n 14 above.29 Sir William McKay, Clerk of the House of Commons, oral evidence to the Committee, 7 May

2002, see n 2 above.30 n 28 above.31 ibid.



Investigation: The Parliamentary Commissioner for Standards

The introduction of the Commissioner in 1995 was a move designed to provide theindependent element in the standards system, a move which it was believed wouldsatisfy the public interest. However, in the hearings before Wicks, the full worth ofthat independent element was called into question. It was also noticeable thatthere was some confusion as to the roles of the Commissioner and the SelectCommittee, and that there was a need for an improved verification of theirrespective remits.32

The position of the Commissioner raised particular concerns both as to statusand powers. Formally the Commissioner is employed as an officer of the House,which could lead to an impression of the Commissioner being at the beck and callof Parliament. Wicks could not fully resolve this problem, as at present there is noobvious alternative to Parliament who could appoint the Commissioner. ForWicks the best current solution would be to make the unique position of theCommissioner more obvious, by defining the post-holder as an ‘appointee’ ofthe House and not an ‘employee.’33 Perhaps of even more significance to theCommissioner’s position is its relatively insecure tenure. This issue was recognisedby Wicks, which although not willing to support full security of tenure along thelines of the Parliamentary Ombudsman, did come to the view that the tenure ofthe Commissioner needed to be strengthened. The solution it favoured was for anon-renewable fixed term of office between five and seven years.34

There are weaknesses, too, in the Commissioner’s investigative powers,including the lack of an express power to order the attendance of a witness.Wicks tackled this on two fronts. First it recommended that the duty of MPs tocooperate with any investigation undertaken by the Commissioner should bemade explicit in the Code of Conduct.35 Significantly, Wicks also extended thisrecommendation to Ministers.36 Second, it recommended that Standing Order 150be amended to give the Commissioner the power to summon witnesses. Evidentlythere would still be an issue regarding the ability of the Commissioner to enforcesuch a power, with support ultimately being required of the Select Committee andParliament. Nevertheless, Wicks felt that such a power would be helpful inenhancing the authority of the Commissioner. Wicks also recommended thatStanding Order 150 should reflect the fact that, where necessary, the Commis-sioner possesses the authority to rectify the Register of Interests, to conductinvestigations and to offer conclusions to the Select Committee on whether or nota breach of the Code had occurred.37 The aim of the latter recommendation is,where the Commissioner has produced a report, to place the onus clearly on theSelect Committee either to agree with the Commissioner or state why it had cometo a different conclusion.In their responses, neither the Select Committee nor the House of Commons

Commission seemed prepared to acknowledge any major issue of concern withregard to the role of the Commissioner. The input of the Commission wasimportant as it is the parliamentary body responsible for the appointment andfunding of the Commissioner. In the performance of this role, the Commission

32 n 2 above, chapters 5 and 8.33 ibid recommendation 20 (R20).34 ibid R21.35 ibid R5.36 ibid R6.37 ibid R4, R8 and R9.



was subject to considerable criticism during the course of the Wicks hearings andin the report itself. The accusation was that the Commission had done much toundermine the position of the second Commissioner, Elizabeth Filkin. The exactextent to which this came about as an inadvertent result of the Commission’sactions is a moot point. Nevertheless, Wicks made it clear that more had to bedone to clarify the selection procedure for the Commissioner and support thework of the Commissioner once in office.38

In its response the Commission offered the opinion that most of therecommendations contained in the Eighth Report that related to appointmentand funding were already in place.39 However, when asked as to how to strengthenthe independence of the Commissioner, the Commission opted for a conservativeapproach by arguing for the shorter period of tenure offered, five years, asopposed to seven.40 It also ruled out describing the post of the Commissioner asan ‘office holder’ rather than an ‘employee’ on the grounds that Parliament alonehad the power to create such a post through statute.41 The Commission did putforward the alternative that they would guarantee only to dismiss the Com-missioner following a resolution of the House.42 But this proposal merely accordswith the provision that is already contained within Standing Order 150 and doesnothing to address the problematic perception that is created where the‘independent’ investigator is an employee of those being investigated.On this question of strengthening the position of the Commissioner, in its

response the Select Committee also appeared to fudge the issue. It reiterated itsopinion that it would use its power to support the work of the Commissioner and,like the Commission, noted that the proposed changes to Standing Order 150would probably not have the legal effect aimed for by Wicks.43 The Select Com-mittee did though undertake to consider including an express requirement in theCode to the effect that Members are bound to co-operate with any investigationconducted by the Commissioner.44

Finally, the Select Committee did not concur with Wicks on the question ofamending Standing Order 150 to confirm the role of the Commissioner inconducting investigations and arriving at a published conclusion.45 Instead it onlyrecommended that the Standing Order be amended ‘to make explicit theCommissioner’s role in relation to the rectification procedure.’46

In our view this response is disappointing. At present, the Commissioner is theonly independent element in the whole regulatory system, and as such deservesgreater support. The Commons has now approved the recommendations of theCommission to extend the Commissioner’s term of office and clarified the circum-stances in which the Commissioner can be dismissed. These moves are to be

38 ibid R20, R22 and R24.39 House of Commons Commission, Response to the Eighth Report of the Committee on standards in

Public Life: Standards of Conduct in the House of Commons, HC 422 (2002–2003).40 ibid para 8.41 ibid para 6.42 ibid para 7.43 House of Commons Committee on Standards and Privileges, Eighth Report of the Committee on

Standards in Public Life: ‘‘Standards of Conduct in the House of Commons’’ HC 403 (2002–2003),paras 79–82.

44 ibid para 13. In addition, the Government have agreed to amend the Ministerial Code to the effectthat Ministers are required to comply with the requirements that Parliament has itself laid onthem as Members. This amendment will appear in the next published edition of the MinsterialCode, Peter Hain, Leader of the Commons, HC Deb vol 407 col 1240 26 June 2003.

45 n 43 above, para 16.46 ibid para 17.



applauded and should now mean that the Commissioner has sufficiently strongsecurity of tenure to enable Parliament to avoid a debacle like the Elizabeth Filkinaffair.47 But even here a period of seven years would have sent out a strongermessage of respect for the post than the five adopted by the Commission. Of moreconcern is the reluctance of all parties concerned to accept the benefits ofcementing the post in statute. Given the vital importance of the Commissioneroperating freely and independently, and given the constitutionally central role thatthis regulatory system plays, there are very strong arguments in favour of such amove. The arguments against are based on parliamentary privilege. But, the need todefend parliamentary privilege at all costs simply does not add up as a compellingconstitutional goal when compared to the public interest in seeing and believing thatstandards are being enforced amongst our democratic representatives. It may wellbe that amended standing orders along the lines proposed by Wicks would provesufficient to provide respect for the work of the Commissioner internally, butperception is crucial here and the evidence to Wicks of two Ombudsmen illustratedthe potential strong ‘comfort value’ for the Commissioner in being supported by anAct of Parliament.48 It is therefore regrettable that the response of the SelectCommittee and the Commons suggests that for the time being they will remainintent on interpreting the post as predominantly there to assist internal judgmentrather than to offer external overview. Parliament, it would seem, is unwilling toaccept fully the public’s interest in seeing that justice is being done.

Adjudication: Select Committee on Standards and Privileges

Wicks made a number of recommendations to make the Select Committee a moreappropriate body to perform the ‘adjudicative’ role. One of the main focuses ofattention for Wicks was the membership of the Select Committee. The SelectCommittee has already accepted that its Chair should be a member of theopposition party, contrary to the ordinary practice within Parliament.49 Even so,there remained a concern that because the membership of the Select Committee ispolitically biased in favour of the governing party, that it has a very clearappearance of partiality. It came as no surprise that Wicks favoured an approachwhereby no one political party should hold overall control of the Select Com-mittee.50 Along with this recommendation on party input, Wicks also proposedthat from now on the membership of the Select Committee should, in themajority, be made up of senior MPs and that Parliamentary Private Secretariesshould be considered ineligible.51 Overall, therefore, the aim is to increase theauthority of the Select Committee in the public eye by emphasising the experienceof its membership, its separation from the Executive, and the lack of any domi-nant party political influence.Wicks also focussed on the need for the Select Committee to increase the

openness with which it operates. For instance, it is recommended that the SelectCommittee should be required to provide a fully reasoned explanation for itsdecisions, particularly where it chooses to differ from the conclusion drawn by the

47 HC Deb vol 407 col 1258, 26 June 2003 and the new Standing Order 150 (3).48 These were Sir Edward Osmotherly, former Local Government Ombudsman, and Sir Michael

Buckley, then Parliamentary Ombudsman.49 A point reaffirmed by the Select Committee in its response to the Eighth Report, n 43 above, para 59.50 n 2 above, R15.51 ibid R16 and 17.



Commissioner.52 Such a recommendation accords with a distinguished andgrowing line of common law jurisprudence that highlights the significance ofreasons in such circumstances to meet accepted notions of fairness. Where anindividual’s rights are affected by a decision of a disciplinary body then fairnesswould demand that reasons should be given. However, with the Select Committee,there is an additional ground for requiring that reasons should be given. This isthe need to lend authority to the decisions of the Select Committee and to satisfythe public that decisions have been taken on legitimate grounds. A linkedrecommendation was that the Select Committee should take evidence in public.53

The response of the Select Committee to proposed revisions of its constitutionwas muted. Although the Select Committee did agree that Standing Order 149should be amended to clarify its role, it did not accept the need to include aprovision that obliged them to give reasons.54 Nor did it accept the need for itshearings to be heard in public.55 On the issue of membership the Select Committeedid not agree that the majority of members should be senior MPs.56 However, itwas encouraging to see that it has agreed to exclude Parliamentary PrivateSecretaries from membership of the Committee57 and to tackle the potential forparty political bias.

Although we would reject the assertion that our composition colours our decisions, webelieve that our unique role as a quasi-judicial body, and the responsibility that we dischargeequally on behalf of every Member of the House, would justify our composition beingdifferent if that improved Members’ or public confidence in the regulatory process.58

Accordingly, they proposed that the Select Committee should be composed of tenmembers, five of whom should come from the governing party and five fromopposition parties.59 Whilst it is difficult to see why there should remain anypredominance of Members from the governing party, this is clearly an improve-ment on the current position.

Independent adjudication and appeal

A more controversial recommendation of Wicks is designed to address both thequestionable independence of the Select Committee in adjudicating on thedisciplinary hearings of fellow MPs and the absence of a satisfactory appealmechanism.60 Thus Wicks recommended the establishment of a separate investi-gatory panel to deal with difficult cases, such as where the breach alleged isparticularly serious or where the Member concerned disputes the findings of theCommissioner. The Panel would be made up of two senior MPs who were notmembers of the Select Committee, and a ‘lawyer of substantial seniority’ whowould also be chair.61 Whilst such a tribunal would not be entirely independent,

52 ibid R11.53 ibid R13.54 n 43 above, paras 20–22.55 ibid paras 43–47.56 ibid paras 60–62.57 ibid paras 63–66.58 ibid para 57.59 ibid para 58.60 Currently an appeal is made to the floor of the House of Commons.61 n 2 above, para 6.28 and R12.



the presence of a lawyer (or indeed a lay person of standing) would lend theprocess an air of impartiality that a sitting of the Select Committee would findharder to obtain. At the same time, this solution would allow the Select Com-mittee to remain in reserve to act as an appeal mechanism where necessary.As for the final stage in the process, deciding on an appropriate penalty, Wicks

was content to leave that authority with the Select Committee. They did, however,make the suggestion that the Select Committee should be given the additionalpower to recommend financial penalties where deemed appropriate. This wouldhave the advantage of reducing the need for suspensions, a form of sanction thatpunishes constituents as well as the Member concerned.62

We wrote earlier of the need to design mechanisms appropriate to the needs of theparticular organisation under scrutiny. It is here, where the question at issueconcerns independent adjudication and appeal within the unique parliamentarycontext, that the greatest tensions arise. Given that the House is empowered towithhold an MP’s salary and to suspend them from attending the House, there is astrong argument that civil rights are affected by the decisions of the SelectCommittee.63 Support for this proposition can be found in the fact that manyprofessional associations have accepted these obligations and have gone out of theirway to demonstrate that they promote fairness in their disciplinary hearings.64 Whatis striking is that with almost all other examples of professional regulation, theoriginal chosen solution, that is largely self-regulation, has been replaced by one thatincorporates varying degrees of independent adjudication as well as investigation.At first glance, there seems much merit in treating the regulation of conduct

within the House of Commons in much the same light. However, as we haveindicated, the House has always seen itself as a very different legal entity whichpossesses very special needs. Thus to retain full control over the ‘adjudication’ and‘sentencing’ stages whilst at the same time recognising the importance of includingan independent element in the self-regulatory process, the approach of Parliamentto date has been to hand over a degree of control to an independent person only atthe investigation stage. Through such a compromise Parliament has successfullyretained for itself ultimate authority over decisions on conduct. This also meansthat their conception of parliamentary privilege is not threatened because the roleof the Commissioner is advisory only. However, this creates the impression thatultimately Parliament sees the Commissioner as an instrument for its benefit, atool with which to manage internal disputes rather than a constitutional mecha-nism by which the public can be assured that standards within the House aremaintained at the highest level.65

Conclusion

Our preferred reforms would entail a strengthening of the Commissioner’sposition, preferably by statute. This would include confirmation of status, tenure

62 ibid R14. As a result of a motion of the House, Standing Order 45A will now be interpreted so thatfinancial penalties can be imposed without suspension, HC Deb vol 407 col 1256 26 June 2003.

63 For instance, in Albert and Le Compte v Belgium (1983) 5 EHRR 533 where two doctors had beensuspended from practising medicine, the EctHR declared that disciplinary proceedings couldimpact upon civil rights in certain circumstances.

64 For, eg. local government and the medical and legal professions.65 D. Oliver, Constitutional Reform in the UK (Oxford: Oxford University Press 1993) 184.



and powers relating to investigation.66 There should also be established aseparate body, either at the adjudication or appeal stage, to which either theCommissioner or the accused MP could refer in the rare cases that cause thesystem particular difficulties. To cater for fairness and the public interest it isessential that this body should contain an independent element. Needless to say,Parliament is a long way from agreeing to such reforms, or even the weaker onesput forward by Wicks.That said, the views of the Select Committee and Parliamentarians in general

should not simply be dismissed as the voice of self-interest as there areundoubtedly benefits in aiming to regulate from within. But this does not entailthat all these benefits are lost if an element of externality is introduced into theprocess. What is clear from the experience of other professional bodies is thatwhen it comes to self-regulation, there are many different shades of grey. Thisfactor has allowed the idea of self-regulation to be broadly and imaginativelyinterpreted elsewhere. Indeed Wicks acknowledged early in its report that ‘allsystems of regulation fall along a spectrum which has pure self-regulation at oneend and wholly external regulation at the other. Most systems are a hybrid,combining elements of both internal and external regulation.’67 Those againstchange have sought to distinguish the role of Parliamentarians from that of otherprofessions on the basis that because MPs are elected, they are already open to adegree of accountability that other professions are not. But although this may betrue, it overstates the point to suggest that the democratic process can be reliedupon to secure standards of conduct in Parliament. Such are the conflicting poli-tical pressures around election time it is unlikely that, on all but the rarestoccasion, decisions at the ballot box will be based upon conduct issues.A further argument against enhanced external input is based upon the strength

that such a precedent introduces. The apparent belief being that somehowparliamentary democracy would be mortally wounded if there were to be even asniff of judicial interference with parliamentary procedure. There is certainly merithere in that clearly the doctrine of parliamentary privilege performs a necessaryfunction. However, caution needs to be taken not to stretch the point too far andaccept too easily the fear of floodgates. There are no such calls for further externalintrusions into the workings of Parliament, and constitutional lawyers wouldbe the first to defend Parliament against them. Nor is it clear that the processof disciplining MPs for breaches of conduct is such a fundamental feature ofparliamentary privilege that it would significantly restrict Parliament’s ability tooperate were it to be opened up to external scrutiny. There is, after all, a precedenthere for redefining our understanding of parliamentary privilege in the events thatled to Parliament surrendering to the courts the authority to adjudicate contestedelections.68 Thus a limited interference of parliamentary privilege could be justifiedon the basis that to do so is to defend higher constitutional values. First, there is aneed to protect the interests of the individual MP whose political career could beruined by a decision of the Select Committee; and second, to demonstrate to thepublic, and not just to MPs, that standards of conduct amongst Parliamentariansbefit the importance of the post. It is difficult to see how the present system forregulating Parliament could ever achieve these goals in full.

66 We welcome the fact that the Select Committee has agreed that the Commissioner should producean annual report, n 43 above, paras 86–87.

67 n 2 above, para 2.22.68 Parliamentary Elections Act 1868.



The most problematic issue appears to be the question of how disciplinaryhearings should be organised. The Committee on Standards in Public Life hasattempted on three occasions now, with three different solutions,69 to encourageParliament in the direction of adopting fairer procedures for disciplining itsmembers. The fact that Parliament has rejected each approach is disappointing tosay the least. Parliamentary privilege is an essential feature of the constitution forsure, but it is there to protect the process of free debate and if in the past itincluded the process of disciplining members that was because in the past therewas a very real danger of the Executive using every means available to restrict freedebate. That danger is surely much more limited today and to suggest that thecourts would attempt to subvert the parliamentary process in such a way is adifficult argument to maintain. All the best evidence that is available points to theconclusion that, save in circumstances where serious illegality of procedure were atissue, the courts would do everything they could to avoid having to rule upon anydecision made within Parliament as to parliamentary conduct. It is, therefore,ironic that in refusing to make allowance for external input, the Commons is veryprobably establishing the only legal grounds that would realistically stand a chancein any potential legal challenge. These are the existence of a partial ‘tribunal’ toadjudicate on hearings and the absence of a satisfactory appeal mechanism.Yet Parliament remains resistant to the idea of incorporating external review. In

its response, the Select Committee has proposed the introduction of a specialprocedure to deal with cases where there is a factual disagreement.70 By thisprocedure the Commissioner would arrive at a factual conclusion with the help oftwo assessors, one MP and one legal advisor. But although these proposals areinteresting they do not meet our objections because crucially the Select Committeewould retain control of the process.Is it realistic to predict embarrassment for Parliament in its handling of conduct

issues, and could such a case ever come before the courts? It is certainly not beyondthe bounds of possibility. Professor Vernon Bogdanor has described howperiodically throughout the 20th century special cases did occur that in practiceproved beyond the ability of Parliament to deal with.71 Professor Dawn Oliver hasalso pointed out that both Keith Vaz and Neil Hamilton employed a lawyer duringtheir hearings, and both subsequently complained of the unfairness of the procedureused against them.72 On another occasion the grievance to reputation and justicemight be considered so great that legal action may seem appropriate. And althoughit has often been said that R v Parliamentary Commissioner for Standards, ex p AlFayed 73 rules out the possibility of the courts taking on board such a case, in thatcase the action was not brought by an MP complaining about a breach of naturaljustice.74 Thus on a different set of facts the courts might deem it appropriate tointervene where the conditions of procedural fairness had not been met.Furthermore, even if the High Court deems it inappropriate to intervene on the

basis that parliamentary privilege blocks its access, the European Court of Human

69 See for instance the Sixth Report, n 9 above, chapter 3.70 n 43 above, paras 23–42. Since approved by the Commons, HC Deb vol 407 col 1257 26 June

2003, see amended Standing Orders 149 and 150.71 V. Bogdanor. Written Evidence to the Wicks Committee, 20/37, see n 14 above.72 n 65 above.73 [1998] 1 All ER 93. This point was strongly made by Professor Colin Munro in his written

submission to Wicks, 20/42.74 According to the Human Rights Act 1998, s.6(3) Parliamentary proceedings are not covered by

the Act.



Rights has famously refused to show a similar degree of deference towardsparliaments.75 And even if it is by no means certain that Strasbourg would ruleagainst Parliament, given the public humiliation that such a course of eventswould entail, it is difficult to support the intransigent inability of Parliament toreconcile tradition and self-interest with the constitutional demand of theelectorate to be given greater confidence that issues of standards of conduct werebeing dealt with properly.The approach of Wicks was to step further along the spectrum towards a mixed

regulatory system. From all the evidence gathered in its inquiry, their reportconcluded that there was overwhelming agreement that the system of regulation inthe House of Commons should demonstrate the following characteristics: anindependent or an external element or both; clarity and transparency; the rightcultural outlook; fairness to those being regulated; the responsibility of leadership.In our view on present evidence, consensus has been reached on some but not allof those elements. It would seem that Parliament has to travel further before itbecomes the model of legality and fairness that would befit its position in theconstitution.

Postscript

One final word should be reserved for the Committee on Standards in Public Life.It is an advisory body only, reports to the Prime Minister and has no formalpowers of enforcement. As such, the potential has always been there for the bodyto become a constitutional white elephant. In practice the Committee has beenremarkably successful in achieving, not just results, but a much-respected positionin political circles. It has gained this position through the quality of itsconsultation process and reports, and through an ability to find practicalsolutions that have largely been acceptable to Parliament and the Executive.When the Committee on Standards in Public Life was originally established, the

then Prime Minister, John Major, referred to the hope that ‘it would remain inbeing as a standing body to advise the Government of the day.’76 We concur withthat view. There may be arguments for its role being amended or expanded tomeet the needs of the day, but for the foreseeable future we anticipate theCommittee continuing as a vital component of the modern British Constitution.

75 Eg Demicoli v Malta (1991) 14 EHRR 47.76 25 October 1994, as quoted in Report of the Quinquennial Review of the Committee on Standards in

Public Life Cabinet Office 31 January 2001 para 5. To be found on the Committee on Standards inPublic Life website: http://www.public-standards.gov.uk/about%20us/quinquennial_report.htm(last visited 4 July 2003).



Slow Progress in Parliament: The Eighth Report of the Committee on Standards in Public Life

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