Thank you for your letter of 16 December 1997 and for extending your deadline.

  2. I welcome the decision of the Committee to review its procedures in the light of the Hamilton inquiry and understand the difficulty faced by the Committee in that case. These matters must obviously be addressed but I hope that the cases in which the procedures worked well in the last Parliament will be borne in mind so that there can be appropriate procedures for the whole range of types of cases coming before the Committee. For the most part, the methodology adopted did work and I hope that the more successful elements of that can be retained and not made unnecessarily complicated.

  3. In that vein I think it is worth, briefly, setting out the way in which I see the process working.

  4. The first stage is that a complaint is made against a Member. This is then investigated by the Commissioner. As the Speaker has repeated on a number of occasions, once a complaint has been made it is important that the due processes are allowed to take their course without further public comment, especially through exchanges on the Floor of the House.

  5. If the Commissioner considers that the complaint is trivial or vexatious, he will dismiss the case immediately and write to the members concerned setting out his decision and the reasons he has reached it.

  6. If, however, he considers that the complaint is not trivial or vexatious, he will assemble all the relevant available evidence and come to a view as to whether the Member has committed a breach of Parliamentary rules. He then presents his findings to the Committee. His report should make clear whether the Member concerned is in agreement with the Commissioner's findings, in whole, in part or not at all.

  7. The Committee will then consider the Commissioner's report. If the Commissioner has found that there is no breach of the rules, that decision should normally be accepted without further deliberation. The Commissioner should then write to the Members concerned setting out the decision and the reasons for it. The Commissioner's report would not normally be published by the Committee except where there was a reason of public interest (as with the investigation of Mr Michael Howard MP).

  8. Alternatively, if the Commissioner has found that there was a breach of the rules and the Member concerned is in agreement with this finding, the Committee publishes the Commissioner's report with its own commentary, which may include a recommendation that the House take action.

  9. If the Commissioner has found that there was a breach of the rules but the Member disagrees, I think that it is necessary for the Committee to consider the nature of the Member's objections. If the Member agrees with the facts of the case, as presented by the Commissioner, but disagrees with his interpretation of the rules, it should then be sufficient for the Committee to seek further written or oral submissions from the Member and then to reach a swift conclusion. In cases where the Committee recommended to the House a penalty on the Member and the Member disagreed, the Member would still be able to seek to amend the Committee's motion on the Floor of the House.

  10. If, however, the disagreement between the Member and the Commissioner related to questions of fact, I suggest that the Committee then needs to consider whether the fact(s) in dispute are so central to the main charge that establishing their veracity is necessary before reaching a view on the case. That points to the Committee and the Commissioner establishing explicitly at the outset the allegations which the Member needs to answer.

  11. If the Committee feels that the disputed fact(s) are not crucial, it would seem sensible to put those matters aside and to conclude the case quickly on the facts which have been agreed. The Committee would then publish the Commissioner's report along with its own commentary and recommendations (if any).

  12. If, however, the Committee feels that the disputed facts are central, then I believe it will need to offer the Member an opportunity to have the disputed facts tested if that is what the Member wants. This task would normally be carried out by the Committee. Occasionally, perhaps where the charges are extremely serious or the nature of the evidence requires evidence being taken from many non-Members, there may be some advantage in the Committee appointing an ad hoc tribunal to carry out the hearing, as is done by a number of professional bodies; the ad hoc nature of the body emphasising the exceptional nature of such a hearing. This might encompass Members only, or Members and lay persons including people with legal expertise. In both cases, the MPs would not be Members of the Standards and Privileges Committee, but would be drawn from a panel of experienced Members.

  13. I suggest that the evidence which will need to be examined is that which relates only to the disputed facts. The main evidence will, of course, be the Commissioner's report though circumstances may occasionally arise where new evidence comes to light and it would be only prudent to allow for this to be tabled if it is thought to be relevant.

  14. It should generally be sufficient for the Committee (or tribunal) to restrict the witnesses it calls to those whose presence is required to resolve the disputed fact(s).

  15. I see little option but for the procedure to be in public, though I would advise against allowing in radio and television for the same sorts of reasons that they are barred from courts and tribunals.

  16. In respect of other matters relating to the conduct of the inquiry, such as the involvement of lay people and the question of legal assistance to members, I suggest that the Committee look at the arrangements adopted by other professional bodies to conduct disciplinary and other cases of alleged misconduct. However, the Committee will wish to tread carefully before allowing Counsel to appear given the potential implications for the inquiries of other Select Committees into contentious matters.

  17. The Committee (or tribunal) would then reach a view on the disputed facts and whether they amounted to a breach of the rules.

  18. If the Committee (or tribunal) found that a Member had not breached the rules of the House, the Committee would dismiss the allegations.

  19. If, on the other hand, in the case of a Committee inquiry the Committee found that there had been a breach of the rules, the Committee would publish a report stating that along with any recommendations for the House. In the case of an inquiry by a tribunal, if the tribunal found that there had been a breach of the rules, the Committee would consider any further representations from the Member concerned on whether the facts constituted a breach (but not on the facts themselves) before publishing its report. The report of the Commissioner would be attached to the Committee's report.

  20. I attach a flow-diagram setting out the various stages of an inquiry which may assist the Committee (see Annex).

  21. I think that addresses most of the key issues in your letter. As you say, the proposal from the Home Secretary to extend the criminal law to encompass bribery and corruption by, and of, Members would, if enacted, have implications for Parliament. Similar implications arise if the possible new criminal offence of Misuse of Public Office is created and applied to Members. In carrying out this current exercise, therefore, the Committee will need to consider whether it is drawing up new procedures designed to accommodate this possible change or, alternatively, whether it sees any new arrangements drawn up now as being of an interim nature.

  22. Finally, may I take this opportunity to record one other point about the Committee's procedures which has occurred to me? I am a little uneasy about the practice which has been adopted on occasions of the Committee's reports combining its findings on a complaint against a Member with more general comments about whether the case raises questions about the current rules of the House. In the early days of the new arrangements, as the rules of the House were being formulated, there was a certain inevitability about this. But, I think that the continuation of this practice is now causing some difficulties. In particular, it can have the tendency to blur the clarity of the "verdict" in a way which can be rather unfair on the Member concerned. I would have thought that the process of establishing whether a Member had breached the rules of the House and whether the case revealed ambiguities which needed to be resolved could be separated and the latter delayed until such time as the Committee had firm recommendations to put to the House.

12 February 1998

Click here to see the flowchart entitled 'Standards and Privileges: A Possible New Procedure'