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We need a standards system that can cope with the conflicts facing MPs

We need a standards system that can cope with the conflicts facing MPs

Houses of Parliament | Alamy

5 min read

The Standards Committee agreed I had to recuse myself from the consideration of the Owen Paterson case, so I have no comment on it, but I have put my name on the amendment which addresses process.

I joined this committee because I have long felt that our system for promoting and regulating of standards in this House is neither effective nor fair. It commands no confidence from either MPs or from the public. It does not even command the confidence of those who complain.

Dame Laura Cox’s report on bullying and harassment found that members’ and House Service staff had no confidence whatsoever that our system was fit for purpose. That’s why we now have the Independent Complaints and Grievance System. The Parliamentary Commissioner for Standards still investigates but the commissioner's findings are adjudicated by an Independent Expert Panel, which includes experienced jurists, chaired by a former high court judge.

I hope to influence the current review of the Code and its operation, but the more I learn, the more it is clear that it requires root and branch reform.

The Committee on Standards in Public Life (CSPL) reported on our system in 2003. It said that: “Members… must believe that it will be a fair process and conducted in accordance with the principles of natural justice.” It identified “six minimum requirements for fairness for the treatment of a member who is accused”. These included, “the opportunity to call relevant witnesses at the appropriate time” and “to examine other witnesses”. Since I joined the committee, this has never been allowed.

The committee is constantly reminded that neither the commissioner nor the committee is a court; that it is an inquisitorial system; and that neither the person being accused, nor their legal representatives can cross-examine the commissioner on the charges being laid.

To enable this to happen, CSPL’s 2003 report recommended, “The House should establish an Investigatory Panel to handle serious and contested cases” with “an independent legal chair from outside the House of Commons”. It further recommended: “An MP whose case is being considered by the Panel should have the right (i) to call and examine witnesses and (ii) to receive reasonable financial assistance for legal advice and representation.”

Such a panel has never been established. The CSPL envisaged their externally chaired panel would provide independent appeal process.  No such independent appeal process exists. The amendment will create a new special select committee which can appoint just such an investigative panel to review this case.

Standing Orders (para 150 (5-10)) does provide for an ad hoc panel, but this has never been used. It is plain to see why. It pays lip service to “natural justice” but subparagraph (6) stipulates that the panel must be chaired by the commissioner, whom nobody could consider as being independent of the commissioner’s original findings.

There are broader and more general concerns about the culture of our system.

Politics is about the pursuit and exercise of power, without which we have no means of achieving what each of us believes is right for the nation and for our constituents. The daily decisions we make must navigate conflicting ideals, relationships and interests. This affects for example how Members make decisions about policy and legislation, while striving to remain independent of business and party donors, including trade unions.

We have a system in which accountability is seen as a threat to independence, and independence is seen as a lack of accountability

What we need is a system that supports Members who want to learn how to handle the constant conflicts we face, as we try to do the right thing.

The underlying assumption appears to be that identifying a few bad apples is sufficient. This has created a system totally preoccupied with the application of rules and enforcement, investigations, finding blame, and punishment. It has led inevitably to confusion, fear and resentment. Conversations MPs have about the system are almost entirely negative and defensive: about how not to fall foul of the rules, instead of about how to behave better or how to exemplify better attitudes.

What we need is a system that supports Members who want to learn how to handle the constant conflicts we face, as we try to do the right thing.

We have a commissioner, and a committee of MPs and lay members, who are of the highest integrity, but without any requirement to have the necessary training or experience, and Members who are frequently conflicted.

We need a system where confidentiality is an equal obligation on all parties, but we have one where only Members can be punished for breach of privilege, not their accusers who leak or the media who report them.

We need a system where there is a proper understanding of the balance between independence and accountability. Instead, we have a system in which accountability is seen as a threat to independence, and independence is seen as a lack of accountability.

The role of the commissioner should be divided. The commissioner should investigate but not adjudicate. Adjudication should be independent and separate. And there should be a further person or body which promotes the positive learning and professional development of Members in matters of ethics and standards, as in other professions.

The Committee on Standards should have proper powers – and the time – to oversee the operation of the system but should no longer decide on individual cases. MPs adjudicating on the conduct of their own colleagues, whom they know, can never command public confidence. It would never be allowed in the General Medical Council or the Bar Council. The fact that Standing Orders make no provision for a member of the committee to recuse themselves underlines how 19th Century our system is.

Whenever the committee questions why we cannot apply more common sense to the system, or to enhance natural justice, the clerks perfectly properly point to the decisions the House has taken. This system cannot continue to simply be imposed as though nobody can question it. The vote on Wednesday is a chance to accelerate necessary change, without condemning or exonerating Owen Paterson.

 

Sir Bernard Jenkin is a member of the House of Commons Standards Committee and Chair of the Liaison Committee, but writes in an individual capacity

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