Dear Chris,
I’m writing with a submission to contribute to your consultation on the MPs’ Code of Conduct. I hope that what follows will be helpful, and I am of course happy to fill in any further details which might help the Committee’s work if needed.
I should add that the role of the Prime Minister’s Anti-Corruption Champion requires me to both support and challenge the Government’s work in this area, and of course I appreciate that your cross-party Committee is Parliamentary rather than Governmental (although I understand the Government will be making a submission to your work as well). As a result, the proposals in this submission are intended to be part of the ‘challenge’ function, so you are aware of my proposals in this area. They aren’t statements of Government policy, or of the Prime Minister’s personal views; instead, they are a summary of how I believe this part of our existing integrity framework could be updated to address new and developing threats in future.
The Principles Of Public Life
I strongly agree with your proposals to base any revised Code of Conduct on Nolan’s Seven Principles of Public Life. No Code can be completely comprehensive or future-proof and so strong underlying principles are important and helpful for the inevitable situations when it isn’t immediately clear how existing rules might apply to new facts. As a result, the ‘safe harbour’ proposals to protect MPs and Parliamentary staff who seek guidance in advance is sensible, and should apply broadly to all queries under any new Code that is adopted.
Future modifications or updates to the Principles (like the proposal to add a ‘respect clause’ in your recommendations) need to approached with great care, to prevent the Principles from becoming progressively more complex (which would undermine much of their value in helping non-experts intuit whether something might be within or outside the rules) or developing into different versions for different walks of public life with technical distinctions that will become progressively more likely to trip well-intentioned people up. We should strive to maintain a single set of Principles which apply to all areas of public life, and any amendments should only be applied with both cross-party political agreement, and also with the agreement of bodies responsible for other public integrity functions such as the Committee for Standards in Public Life, the Advisory Committee on Business Appointments (ACOBA), the Prime Minister’s Independent Advisor on Ministers’ Interests and their equivalents for both local Government and the Civil Service Code too. There are also many well-informed civil society and non-Governmental organisations in this area who will be able to contribute strongly in this area, so their views on any proposals should be sought and considered carefully too.
Investigations, Sanctions & Appeals Over MP Conduct
There is concern inside Parliament that our current processes don’t treat MPs who are under investigation particularly fairly, and equally-serious worries outside Westminster that those same processes leave the door open to cronyism by allowing MPs to judge each other’s cases. I also appreciate (and agree with) the constitutional importance of maintaining balance in the separation of powers between elected Parliamentarians and the judiciary, which means the normal courts system can’t be involved. And with your decision to request a senior judicial figure (Sir Ernest Ryder) to carry out a review of the House’s current system of investigating and deciding upon breaches of the Code.
At the very least, and depending on this review, the existing process for dealing with accusations of bullying, provides a useful template or ‘default process’ for other types of problem too. It avoids the problems created if the Standards Commissioner is both investigator, judge and then advisor on any appeals against her own decision, but also cements independence from political interference and potential cronyism too. Unless the senior judge-led review can improve on this further, the revised code should extend the existing anti-bullying system that is based on the House of Commons Independent Experts Panel (IEP) to cover all Standards cases, with appeal panels using retired senior judges and the remaining members of the Committee on Standards acting as the ‘lawmaking’ body, drafting and amending the Code of Conduct and associated rules and ensuring that MPs receive appropriate training in the Code. Case decisions would come to Parliament for a vote but no debate, to preserve Parliament’s self-governing independence.
Outside Interests
Your Committee will already appreciate that the rules on outside interests exist to protect against two different threats. The first is conflicts of interest, to ensure MPs or Parliamentary staff don’t stand to gain personally from serving other interests than those of their constituents and the country as a whole. The second is to ensure that MPs aren’t moonlighting to the extent that their constituents aren’t getting the service which they voted for in the General Election. This leads to several important conclusions about any potential changes to the rules:
Lobbying
Lobbying has long been disallowed to prevent conflicts of interest, and should remain so. The proposals to update and broaden the way this principle is applied to roles such as ‘strategic advisers’, and to require written contract terms which explicitly exclude it from any outside roles, are sensible amendments which should protect MPs from being put in difficult positions and, in the process, improve public trust in Parliament as well.
Other Types Of Role
There have been suggestions that either all outside interests should be banned, or that working in particular industries should be either explicitly allowed or entirely excluded (for example that public-sector roles should be allowed but commercial ones not, or that specific professions such as the law or medicine should be allowed while others are not). But both these ideas have serious flaws:
- The problem with banning all outside interests is that every Ministerial role is a second job, with a separate salary and pension scheme, so it would be inconsistent and illogical to argue that any other outside role must automatically short change voters. There are also many outside interests (such as acting as a trustee for a charity, or as a Director of a company that is creating wealth and jobs) which deliver significant public benefits, and others which allow professional accreditations to be maintained, or which give MPs specific expertise which they can use to improve the quality of Parliamentary debates too.
- The difficulty with distinguishing between different types of role (beyond the general prohibition against lobbying that’s covered above) is that any and every type of outside interest may also seek to influence policy-making or the ways that public services are delivered at one time or another. This applies to commercial companies, charities, labour unions, religious bodies and churches, foreign states or anything else. Some of these influences will be beneficial (because they improve understanding and democratic dialogue between any government and its stakeholders) while others will not (because they are trying to tilt the playing field unfairly, at the expense of taxpayers) and many will be a both at different times. But they are all potential sources of conflicts of interest, so we need an integrity system which can distinguish between them, rather than one which assumes that some of them are always or uniquely good or bad. The proposals to broaden MP declarations to include unremunerated positions such as unpaid Trustees is, as a result, very sensible to ensure that any potential conflicts are identified and declared correctly.
Declarations of Interests
The proposals for improved systems to allow better ‘ad-hoc’ declarations of interests (for example when asking a Written Parliamentary Question online) are sensible applications of existing principles and would plug potentially-important loopholes. They should be introduced as soon as possible.
The proposal in the Report for faster registrations on a more-searchable database should apply more broadly than just to the Parliamentary or Ministerial registers of interests. Transparency is vital in this area, so voters and civil society groups can check that integrity is being delivered in practice, and should apply to all the relevant registers which include:
Public reports of Ministerial and Permanent Secretary civil servant meetings
The Register of Consultant Lobbyists.
The Register of Members’ Interests
Electoral Commission’s reports on political party donors.
Taken together, these four registers have the potential to paint a comprehensive picture of potential external influences on Ministers, officials and Parliamentarians. But the Report is correct to argue that the quality, detail, interoperability and public searchability of the data available through these mechanisms and registers should be improved through shared data and digital accessibility standards. For these improvements to provide their full potential value, the public reports of Ministerial and Permanent Secretary meetings are currently too narrow: there are other, senior and potentially-influential figures (such as political special advisors, or other senior officials below the rank of permanent secretary) who should be included as well. Finally, these mechanisms should apply equally and evenly to all areas of public life, including central, devolved and local Government as well as arms-length public bodies too. Some of them already do, but not all, so we need an audit to ensure there are no unintended loopholes.
If these changes are made, it will become much quicker and easier to cross-reference the people attending meetings with Parliamentarians, Ministers or officials and party donors, with enough detail about the topics they discussed to know if there was a potential conflict of interest or not. At that stage, there should be no need to implement the Report’s other proposal for dual-declarations of some hospitality and events on both the Parliamentary and Ministerial Registers because its’ intended benefits would already have been achieved, while the potentially-significant extra costs of increased bureaucracy and potential for accidental mismatches between the two registers (with associated erosion of public trust) could be avoided too.
Scope Of The Code
In the same way as it is constitutionally essential to maintain the separation of powers between elected Parliamentarians and the judiciary when potential breaches of the Code are investigated and sanctioned (as outlined in above), it is also essential to maintain the separation between voters deciding issues democratically at elections, rather than through a new and broader Standards Code. So the Committee is right to conclude it would be both impractical and also constitutionally undesirable to extend the Code by attempting to police truth or accuracy in political campaigns or discussions: these are hugely important issues for the strength and health of our democracy, but must be policed by exposing errors and weaknesses through political debate in Parliament, local Government, the press and social media, rather than by replacing or usurping democracy with lawyerly arguments in tribunals.
The same argument applies to suggestions that the scope of a revised code should be extended to police how MPs handle constituency responsibilities (such as casework), or whether an MP’s outside interests are taking so much time that their voters are being short-changed (as outlined above). These are also hugely important issues, but the only people who should decide if an MP is doing a good job representing and helping the constituents who elected them are the voters themselves, through the political debate and ballot boxes of a General Election. Voters are already able to make well-informed choices on these issues: for example MPs must (rightly) declare the hours which their outside interests involve and any earnings which they generate, and a combination of local social media sites and opposition politicians will quickly identify and publicise the extent and effectiveness of their MP’s involvement (or not) in local issues and casework too. Any other system (for example by requiring MPs to complete timesheets of their Parliamentary work) wouldn’t just fall into the same trap of attempting to replace or usurp democracy with lawyerly arguments in tribunals: it would also be hugely bureaucratic, open to abuse, and would not allow for the very different backgrounds, skills and work processes which mean that different MPs deliver services to their constituents in highly diverse ways.
Finally, this same principle should also apply to how MPs use their democratic mandate to speak freely. It is a fundamental constitutional principle that the rule of law applies as equally to MPs as to everyone else, with the sole exception that MPs have some extra freedoms to speak in Parliament without fear of legal consequences. So the scope of the Code should not be extended to hold MPs to a different standard than the rest of the country in how they behave outside Parliament, or to replace and usurp the powers of the Speaker in policing the way MPs’ express their views or opinions inside it either. This means that the Committee’s recommendation not to extend the scope of the Code to include what is said inside Parliament is right, but that any proposals to extend the code to cover what MPs say publicly outside Parliament (for example in preventing personal attacks on social media) should be treated with great caution. That isn’t because unreasonable or personal attacks are desirable or right, but rather that there are many more people with large and powerful social media followings which could be misused outside Parliament as well; so if a particular type of behaviour justifies legal sanctions then it should be included in the upcoming Online Harms Bill so everyone continues to be equal under the law. And if MPs express views or hold opinions which are perfectly legal but which their constituents think are wrong or foul then, again, the solution lies in the ballot box at an election rather than in being policed by an extended Code of Conduct.
I hope this is helpful. Please let me know if you or your Committee would like anything more.
Best wishes
Prime Minister’s Anti-Corruption Champion