Standards of Conduct in the House of Commons

Introduction: Charter 88’s current concerns

1. The perception of low and falling standards of conduct in public life which the Committee was established to address in 1995 is still prevalent. The health of a democracy is improved by a general belief that their representatives act in their best interests, and are accountable to the public for those actions. The perception that politicians transgress the agreed principles of public life, enshrined by the Committee, is highly damaging. Charter88 believes that this lack of trust is one factor contributing to the declining electoral turnout we have seen over the last decade.

2. The media rightly monitors the system of regulation, the register of members interests and any suggestions of impropriety. However, it is often the case that press obsession with the possibility of even marginal infringement of the rules is encouraging cynicism about the conduct of politicians, rather than uncovering a significant number of instances of misconduct.

3. Standards of conduct in the House of Commons cannot be separated from other issues of democratic reform at Westminster. Currently, debate about how Parliament works and relates to the outside world, and relations between Parliament and the Executive also excludes the people whom MPs are elected to represent. The complexity of the role of parliamentarians means that it will always be easier for the public to listen to discussion of conduct rather than the representative, legislative or scrutiny roles of MPs. It is therefore essential the issue of standards is addressed, and that the public has confidence in the system.

4. Opinion polls show that, despite the work of the Committee and the reforms introduced in its wake, there has not been a revival of public confidence in the probity of politicians. Levels of mistrust have remained around the 75 per cent mark throughout the last twenty years (Figure 1). Perceptions about ‘sleaze’ since the introduction of the Nolan reforms has also stayed level, with the majority believing that there was ‘no difference’ in levels of sleaze under the Labour Government than under the Major Government (Figure 2).

5. One inevitable consequence of encouraging openness and greater accountability is that information is made available from which more incidences of impropriety can be inferred. There has been a rise in minor complaints which has encouraged a ‘tit-for-tat’ culture of party political point-scoring. This applies not only to the register of member’s interests, but the registration of donations to political parties. Although often the media does expose and publicise substantive cases of wrong-doing, and this has been a major benefit of the register of interests, small stories have often been given disproportionately wide coverage.

6. The view that the Labour Government is more ‘sleazy’ than the previous Conservative Government is widely held (Figure 2). No doubt the scandals associated with Bernie Ecclestone, Peter Mandelson, Geoffrey Robinson, Keith Vaz and others have influenced public opinion. However, this may also be a consequence of media frenzy resulting from stories which often begin with MPs’ honesty in registering interests, and the inherent openness of the system of declaration. Nevertheless, the register of interests does provide a way of scrutinising members’ interests, and throws the necessary suspicion on failures to record benefits. This reinforces the fact that openness and freedom of information brings with it responsibilities for politicians and the media in how information is used.

7. The publication of the Select Committee on Standards and Privileges’ Ninth Report (30 April 2002) recommends that ‘interests the value of which does not exceed 1 per cent of the current parliamentary salary should not be required to be registered’ (para. 12). The reason given for this rise in the minimum level of benefit is ‘without a realistic de minimus level, below which interests do not need to be registered, there is a danger that interests in the Register which are of substance will be obscured by the proliferation of relatively insignificant benefits, the recording of which does not serve the Register’s main purpose’. A higher minimum may, or may not reduce the ‘tat-for-tat’ party point scoring, but it may be damaging for other reasons.

8.The media reports on the Committee’s Ninth report have implied that members are raising this figure to protect themselves from damaging claims of corruption or a failure to obey the rules. Within a system of self-regulation, tampering with the rule book will breed further suspicion.

9. The publication of this report a day before the end of the consultation on the Wicks Committee issues and questions paper, and without wide consultation, further damages the credibility of the Code of Conduct and the Guide to the Rules Relating to the Conduct of Members.

10. One factor which has contributed towards declining voter turnout in elections is the lack of engagement that the public feels with their elected representatives at Westminster. Self-regulation, and the terms in which regulation is discussed, leaves those outside the Commons out of the picture.

11. It may be unrealistic and unnecessary to expect the general public to be aware of the roles of the Commissioner, the Committee and the rules governing members’ interests. However, there should be a wider appreciation of the principles on which conduct of MPs is based, how these have been arrived at, and by whom. For those members of the public who do wish to find out how the system works there needs to be more openness and dissemination of information, including better use of the internet in publicising the work of the Committee and Commissioner. Fundamentally there should capacity for wider debate about how the system works and in whose interests. Without easy access to, and knowledge of the present structures, such wider debate will be impossible.

12. We must also accept that the public will not always distinguish between the behaviour of ministers in their roles as ministers and MPs. It is therefore highly relevant to the Committee’s present inquiry to consider how the operation and monitoring of the Ministerial Code is working. Opinion polling shows that the public does not have complete confidence in the procedures to deal with breaches of the Code, with only 7 per cent in 2000 believing the Prime Minister should have responsibility for enforcing the Ministerial Code, and 70 per cent supporting such enforcement should be carried out by an independent official or the police and courts (Figure 3).

13. The role and independence of the Commissioner for Standards has been called into question since the initial terms of appointment fell short of those recommended by the Committee on Standards in Public Life, and as a result of the circumstances surrounding the final months in office of the last incumbent. Not only do lack of independence and powers for the Commissioner compromise some of the formal body of regulation, but the perception that the Commissioner has been, is, or could be, constrained in his or her investigations raises mistrust of self-regulation further.

14. Opinion polling shows that confidence in self-regulation has not significantly increased between 1995 and 2000 with 27 per cent believing the current structures were working well, or needed minor tightening up in 1995, and 28 per cent holding those views in 2000. 63 per cent supported regulation by an independent Commissioner backed by the civil courts or police investigation with criminal sanctions (Figure 4). Self-regulation has clearly not won the confidence of the nation since the publication of the Nolan report.

15. Charter88 does not agree with the view that absolute sovereignty rests with the Crown in Parliament. It is our view that the political system has evolved largely in the interests of those in power. We believe that members must be accountable to the public – they are public servants.

16. The seven principles of public life which the Nolan Committee set out in its 1^st Report have been widely used as the basis for consideration of standards across the public sector including at Westminster, the new devolved Parliament and assemblies and the whole range of public bodies. We support the continued use of the principles in framing regulation and as a guide for those holding public office. However, we also recommend that the Committee gives consideration to developments in the Scottish Parliament, where the code of conduct in the Scottish Parliament begins with the words

17. Charter88 believes that principles such as this, rather than the principle of Parliamentary sovereignty, must form the basis for regulation of standards.

18. There are still ‘weaknesses in the procedures for maintaining and enforcing’ the standards set for conduct (Nolan Report, 1995). Charter88 does not advocate significantly more regulation, but that the regulation that there is should become enforced firmly but fairly, and the systems which exist must gain a sense of public ownership denied by self-regulation.

19. The current system of self-regulation of standards has failed in three respects. Firstly, such a system is, by its nature more liable to abuse than one independently monitored. Secondly, such a system fails to restore trust in the probity of members because it is perceived to be open to abuse, whether abuse occurs or not. Thirdly, regulation as it stands is purely determined by parliamentary insiders, the public cannot feel any ownership of the system.

20. The Nolan report stated that the Commissioner would be a person of ‘independent standing’. However, the independence of the Commissioner did not emerge in the way the Nolan report recommended, neither does the Commissioner have any statutory power. He or she can only act through the Standards and Privileges Select Committee. It is the Committee, with its government party majority, which has the power to send for papers, persons and records, and administer the oath. It is the Standards and Privileges Committee, not the Commissioner, which determines whether, and when, a report will be published. The perception can easily arise that the party allegiance of Committee members affects their decisions to investigate cases. As Diana Woodhouse has written ‘The Commissioner still operates within the framework of the Westminster club and is dependent on it and confined by it’ (‘The Parliamentary Commission for Standards: Lessons from the ‘Cash for Questions’ Enquiry’, Parliamentary Affairs, 1998). The pressure the Commons allegedly placed on Elizabeth Filkin shows at the very least that there is the potential for the system to constrain the Commissioner, or for this to be perceived to be the case. Not only is the decision to investigate, and the power to investigate, subject to Parliament and to parties, punishment for breaches of the rules is also set by the Westminster club.

21. The system needs strengthening. This can only be achieved if it becomes more independent. This independence can be gained either by making the Commissioner more independent from the Committee on Standards and Privileges, making the Committee, which de facto controls the work of Commissioner, independent of political parties or Parliament, or by making the rules which politicians must uphold statutory requirements with breeches leading ultimately to the Courts.

22. The House of Commons Commission, in agreeing the terms of appointment for the new Commissioner, Mr Phillip Mawer, insisted that there was no downgrading of the importance of the post, despite the reduction in working hours, a heavy caseload and inadequate staffing and resources.

23. This was not the impression which was conveyed to the public, admittedly by a media obsessed with the whiff of conspiracy and possible corruption. However, the inability of the Commons authorities to convince the public that such criticisms were invalid was a direct result of the system of self-regulation and the secrecy by which the Commission and other channels at the Commons operate. In essence the public had no way of divining the truth and, given the importance attached to the investigation of probity among their elected representatives, unsurprisingly favoured the account given by the outgoing Commissioner and the large number of senior MPs who supported her account. The Commission had no one to blame but itself.

24. This failure of self-regulation is echoed by the publication of the Ninth Report of the Select Committee on Standards and Privileges. The media was quick to pick up on the embarrassment that could have been saved for prominent ministers and MPs had the minimum benefit required to be registered been set at the outset of the Code of Conduct. This suspicion will always be greater in a system of self-regulation.

25. Further to the current regulations, Charter88 believes the probity of Parliament could be strengthened in a few key ways.

• The tightening of the Ministerial Code, then Questions of Procedure for Ministers, as a result of the 1^st Report of the Committee, and the extension of the role of the Advisory Committee on Business Appointments to cover former ministers, were important reforms. This is an area which requires careful attention as generally speaking, Ministers and MPs who leave office should not be prevented from accepting posts in companies or other bodies. However, such appointments can add to the culture of cynicism in the press, and in the public at large. We suggest that this would be an appropriate time to revisit the issue, as it would be better to address the question at a time when it may be less politically sensitive than in the past (see para. 12 above).

• We support the recommendation to create a Commissioner responsible for the operation and monitoring of the Ministerial Code. Such a post may or may not be combined with that of Parliamentary Commissioner for Standards. However, as stated above, the two spheres of ministerial conduct cannot be entirely separated.

• We reiterate the call made at the time of the 1^st Report of the Committee to establish a register of consultancies and lobbyist firms. This should be accompanied by a set of written rules of engagement which should include the regular publication of who is acting with whom, on behalf of whom, over what, at any time, with penalties for failure to comply.

Policy: 020 8880 6088 policy@charter88.org.uk