House of Commons - Standards and Privileges

Select Committee on Standards and Privileges First Report

Complaint against Mr Anthony Steen

1. On 20 July 2004 Mr Christopher Clayton, a constituent of the Member for Totnes, Mr Anthony Steen, wrote drawing my attention to a publication issued by Mr Steen which Mr Clayton believed was in clear breach of the rules governing the funding of publications from the Members' Incidental Expenses Provision (IEP). A copy of Mr Clayton's letter is at Written Evidence (WE) 1. The publication in question was a report on Mr Steen's parliamentary activities, entitled "Westminster Report", published in Spring 2004. This had been circulated by Mr Steen to his constituents: its purpose was described as being to keep them informed of what their MP was doing in Westminster and in his constituency. A small box on page 3 of the report said:

"The costs of printing and publishing this report is met from the incidental expenses provision and the distribution costs are covered by Devon businessmen.".

2. Following inquiries he had made of the House's Department of Finance and Administration (DFA), Mr Clayton was aware that the guidance issued by that Department to Members on publications funded from the IEP includes the statement that:

"The allowances must not be used to fund party political activity or campaigning.".

In the light of this Mr Clayton questioned the inclusion in an article about council tax on page 1 of Mr Steen's "Westminster Report" of a statement that:

"The Lib.Dems need their collective heads examined in their naïve belief that a £100 cash back scheme, which they promised each council tax payer, is any solution.".

Relevant provisions of the Code of Conduct and of the House's rules

3. The Code of Conduct for Members includes a provision that:

"No improper use shall be made of any payment or allowance made to Members for public purposes and the administrative rules which apply to such payments and allowances must be strictly observed.".

The rules attaching to the use of the IEP, which are set out for Members in the Green Book, make clear that the allowance must be used solely to fund expenditure "wholly, exclusively and necessarily incurred on Parliamentary duties".[5] It cannot be used to meet "the costs of party political activities or campaigning".

4. Printing and sending newsletters to constituents is allowable expenditure "provided that these meet Departmental standards and do not amount to political campaigning".[6] In January 2003, the DFA circulated to all Members revised guidance on publications funded from the IEP, following discussion with the then Speaker's Advisory Panel on Members' Allowances. A copy of this guidance is at WE 3. The guidance includes as Rule 1 the following statement:

"The purpose of the publication must be to inform constituents about your work as a Member and/or to provide contact details. The allowances must not be used to fund party political activity or campaigning.".

5. It goes on to indicate that if a Member's publication meets the terms of this and the other Rules in the guidance, its cost may be met from the Member's allowances without seeking approval from the DFA. However officials will audit a number of publications each year and if a Member is found to have contravened rules 1-6 of the guidance, he or she will be asked to repay any costs involved.

My inquiries

6. Having received Mr Clayton's complaint, I wrote to Mr Steen on 3 August to seek his comments. A copy of my letter is at WE 4. I also invited the views of the DFA. Mr Steen replied on 15 September; his response is at WE 5.

Mr Steen's position

7. Mr Steen said that he totally refuted Mr Clayton's allegation. He had never used the IEP improperly, nor used it for party political campaigning. He pointed out that when Local Income Tax had been debated in the House on 19 July 2004, "the overwhelming view of the House … was the Lib. Dem. scheme was both unworkable and a gimmick, and that the Lib.Dem local Income Tax was no answer to the problems of high Council Tax bills".

8. Mr Steen added that he had claimed just over 40% of the cost of printing and distributing his "Westminster Report" (£3,060.30) from the IEP, the rest of the total cost of £7,516.22 being met from other, private sources. In the past he had sent copies of his reports to his constituents to the DFA, which had judged whether they could pay the entire cost claimed or, if they felt the report contained any party-political or campaigning activity, only a percentage of it. In the present case, the Department had paid the bill of £3,060.30 presented to them without question.

The Department's comments

9. The DFA explained that the present rules on newsletters had been introduced in 2002 after discussion with the then Speaker's Advisory Panel on Members' Allowances. Before 2002, the relevant section of the Department (then known as the Fees Office) had checked Members' newsletters individually. According to the content of the newsletter, the Department would decide what proportion could be claimed against the allowances. If the newsletter contained political material, the DFA would generally decide that part of the costs could be met from the allowances and part should be met by the Member from other sources.

10. Neither Members nor the DFA were content with this arrangement as it involved staff making what could be quite delicate judgements and the criteria for making these were not transparent. For this reason, with the approval of the Advisory Panel, the DFA had drafted fact sheets which were first issued to Members on an ad hoc basis in 2002. These explained that the allowances must not be used for newsletters containing party political activity or campaigning. Provided Members adhered to these rules, they could issue newsletters without first having them checked by the Department. According to the DFA, the old system of split-funding of publications (that is, the arrangement under which, if a newsletter were found to contain some party political material, a deduction would be made from the amount reimbursed from the allowances) was brought to an end at this time. (As I indicate in paragraph 21 below, Mr Steen has reservations on this point. I should add that the term "split-funding" is a piece of shorthand of my own. (See also WE 11.) It was not a term used in the guidance issued by the Department.)

11. The guidance produced by the DFA was subsequently slightly revised and, in the form set out in WE 3, was circulated to all Members by the DFA in January 2003. According to the Department's records Mr Steen clearly received this guidance as he referred to it in a letter to them dated 1 April 2003 (WE 6). In this letter, Mr Steen said he wished to use his IEP once or twice a year to cover the cost of distributing his Westminster Report, the drafting, design and publication costs of which were met by local businessmen.

12. The DFA told me that Mr Steen did not submit the text of his spring 2004 "Westminster Report" to them in advance of its publication. Had he done so, they would have regarded the two sentences on page 1 objected to by Mr Clayton as breaching their guidance on material qualifying for reimbursement from public funds. Whilst they noted that, contrary to what he had said in his letter of 1 April 2003, Mr Steen wished to claim the cost of printing and publishing, not distributing, the report, they knew that Mr Steen had been sent and had seen the guidance. The Department had no reason to presume that Mr Steen had not followed the guidance and so met his claim when he submitted it after publication.

Further comments by Mr Steen

13. Having heard from the DFA I wrote to Mr Steen saying that, subject to any further comment he might wish to make, I proposed to make a formal report to the Committee on Standards and Privileges about Mr Clayton's complaint. I was inclined to believe that Mr Steen had breached the Department's guidance and, therefore, the Code and I also felt that the case highlighted a number of policy issues which it would be helpful to all Members for the Committee to address. A copy of my letter is at WE 7.

14. In two subsequent letters (reproduced at WE 8 and 10; my letter of 27 October to which the latter is a response is at WE 9), Mr Steen said firmly that he had been specifically advised by the DFA that they would pay for editions of his "Westminster Report" as requested but would reduce their contribution on a percentage basis if they felt there was any party political content. In an eight page publication with party political material on one page, this would entail a 12.5% reduction in the contribution he had requested from the IEP. Given in particular that some 60% of the total cost of printing, publishing and distributing his Spring 2004 "Westminster Report" had been met from private funds, Mr Steen thought it would be unfair to apply any other approach in his case or to criticise him for following advice he had been given by the Department.

15. Mr Steen also questioned whether the statements to which Mr Clayton objected constituted party political activity or campaigning:

"Saying that the 'Lib Dem £100 cash back gimmick is no answer to our spiraling council tax bills' is a matter of fact and the promised rebate has never been paid. I have certainly not argued anywhere in the newspaper that readers should vote Conservative. I still maintain that the Lib Dem cash back gimmick is not party political activity but a political comment. There is a clear distinction here.".

16. I asked the DFA to confirm the advice they had given Mr Steen and when it had been given. In his reply, the Director of Finance and Administration, Mr Andrew Walker, noted that in his letter of 1 November Mr Steen said that he had been specifically advised by an official of the Department that, if one of his newsletters contained anything party political, it would be funded only on a percentage basis. Mr Walker commented:

"I think it likely that Mr Steen was given such advice, but it would have been before the new arrangements for funding newsletters etc were introduced in November 2002. When these new arrangements were introduced, the system of split funding of newsletters etc came to an end.

[One official named by Mr Steen] has confirmed that he has had no such conversation with Mr Steen about his newsletter in recent months, and since [the second official] was on sick leave in the early months of the year he is also unlikely to have given such advice in the context of the report in question.".[7]

17. Mr Walker confirmed that Mr Steen had been made aware of the new guidance on newsletters issued to all Members in revised form in January 2003. He pointed out that Mr Steen had indicated that he had received it when he had written to the Department in April 2003 (see WE 6) and that the guidance clearly stated that newsletters paid for from the allowances should not be used for party political purposes.

18. I wrote to Mr Steen conveying Mr Walker's response on 17 November and enclosing draft factual sections of my report to the Committee on Mr Clayton's complaint. In a telephone call and later in correspondence (see our exchange of 22 November at WE 11 and 12) Mr Steen said that the term 'split-funding' had never been mentioned in his dealings with the DFA. All the Department had told him was that if they concluded part of a publication contained any party political activity, they would reduce his claim for funding from the allowances accordingly.

19. On the question whether the words in his Westminster Report about which Mr Clayton had complained constituted party political activity or campaigning, Mr Steen asserted that it was important that they were seen in the context of the article as a whole. He submitted that, regarded in this way, the words should be seen as political comment rather than party political activity or campaigning. He continued:

"As this article was specifically about Torbay Council and their failure to return £100 to individual council taxpayers in the 2004-2005 financial year, I was simply reporting facts. If that is accepted, the sole remaining point is whether the phrase "The Lib Dems need their heads examined" constitutes party political activity or campaigning. If the Committee says it is not, the whole question of split-funding will not be an issue.".

20. Following this exchange of letters, Mr Steen and I met on the afternoon of 23 November. Mr Steen repeated that the DFA had never said in terms that the former split-funding arrangement (as defined in paragraph 10 above) had been withdrawn. His Westminster Report was well received in the constituency: Mr Clayton's was the only complaint in the 8 years of its existence. The remark to which Mr Clayton had objected had been a throw-away comment in an 8 page document, which otherwise displayed its non-partisan character by the fact that on its final page it had included an article by a Labour Member. The comment did not, in his view, constitute party political activity or campaigning.

21. In a subsequent letter dated 24 November (see WE 13), Mr Steen expresses further reservations about the view of the DFA I have reported in paragraph 10 above on when split-funding ceased to be an option. The Committee will wish to note Mr Steen's view. Mr Steen also questions the Department's statement that, had he submitted his Spring 2004 newsletter to them in advance (it is not suggested that he was required to do so), they would have regarded the two sentences objected to by Mr Clayton as breaching their guidance. Mr Steen is uncertain that this presumption can be made. Again the Committee will wish to have Mr Steen's observation in mind as it considers the complaint against him.

Findings of fact

22. In the spring of this year, Mr Steen circulated to his constituents an eight page report on his activities at Westminster. The total cost of printing and distributing this was £7,516.22, of which £4,455.92 was met from private sources and £3,060.30 from his Incidental Expenses Provision (IEP).

23. Page one of the report consisted of an article by Mr Steen giving his views on Council Tax. In the course of this article Mr Steen said:

"The Lib Dems need their collective heads examined in their naïve belief that a £100 cash back scheme, which they promised each council tax payer, is any solution.".

The essence of this sentence was repeated and highlighted in a separate box at the foot of the same page.

24. The guidance issued to Members on the use of the IEP in connection with the publication of newsletters of this type provides that the allowance "must not be used to fund party political activity or campaigning." In claiming a portion of the total cost of the publication from his IEP, Mr Steen believed that he was acting in accordance with advice he had previously received from the DFA that if they found any part of the content to be party political in character they would reduce his claim by a proportionate amount. According to the Department Mr Steen probably had received advice to this effect in the past, but this was before revised arrangements for funding newsletters were introduced in November 2002. These revised arrangements made clear that newsletters paid for from the allowances should not be used for party political purposes. They also brought to an end the former arrangements under which, if a newsletter was found to contain any party political material a Member's claim for reimbursement would be reduced proportionately depending on the circumstances. The guidance did not, however, state this latter point in terms and Mr Steen did not draw from it the inference—which the DFA insists it implied—that the former arrangement had been ended.

Conclusions

25. The guidance on funding publications from the IEP makes clear that public funds cannot be used for "party political activity or campaigning." The main question is whether Mr Steen's comment about the Liberal Democrats' policy on council tax constituted such activity or campaigning.

26. I suggest that it did. The purpose of a publication of this sort is to enable a Member to report to his constituents what he has been doing on their collective behalf at national and local level as their elected representative. It is important to public confidence in and knowledge of Parliamentary government that Members keep in touch with their constituents and an occasional newsletter is one means of doing this.

27. It is clear though that where such a newsletter is to be produced with the assistance of public funds, Members are free to say what they have done and why in their Parliamentary capacity, provided this is done in a way not designed to promote the viewpoint of one party or to denigrate the views of another. Such a newsletter is primarily intended as a factual document, a document of record rather than of opinion. Whilst the public will understand that a Member's opinions cannot wholly be excluded from such a document—indeed that knowledge of those opinions may be necessary to an understanding of what a Member has been doing on their behalf—they would I believe be concerned if their money was used to fund a platform from which sitting MPs could promote partisan views (which they may not share) on matters of party political dispute. Questions would understandably be raised about whether this gave sitting Members an unfair advantage over their political opponents. It is no doubt for this reason among others that the House's rules on allowances provide that they cannot be used for party political activities or campaigning.

28. Mr Steen accepts that his remarks constituted political comment but denies that they amounted to party political activity or campaigning. He advances two different arguments for this:

i) His statement that the 'Lib Dem cash back gimmick is no answer to our spiraling council tax bills' is factually accurate and was the overwhelming view of the House when local income tax was debated on 19 July 2004.[8] In his letter of 22 November Mr Steen says that his comment was factual as the article of which it was part "was specifically about Torbay Council and their failure to return £100 to individual council tax payers in the 2004-05 financial year". However, taken as a whole the article in question is about the level of council tax and the contested statement appears as a general political comment, not one focused on the Council. Considered more generally, Mr Steen's comment may accord with the view of some, but not with the view of all and it is self-evidently a statement of opinion, not of fact. Moreover if his argument were to be accepted, any comment critical of a minority party position not espoused by the other main parties would have to be accepted as legitimate but no comment critical of the policies of a party having an overall majority in the House could be so regarded;

ii) He has not argued anywhere in his newsletter that readers should vote Conservative. Whilst this is correct (and in accordance with the Department's guidance), his argument assumes that "party political activity or campaigning" equates only to urging people to support a particular political party. In my view it can equally involve criticising the policies of one's political opponents.

29. The question remains whether Mr Steen's comment constituted party political activity or campaigning. Although some guidance on this is given in the DFA's note reproduced at WE 3, such guidance cannot be comprehensive and what constitutes political activity or campaigning is something to be judged in the circumstances of each case. Whilst recognising that determining the border line between what is 'parliamentary' and what is 'party political activity' may not always be easy, it is of course a judgement Members must frequently make, as the concept is fundamental to several aspects of the Parliamentary allowances regime. So, although sometimes difficult to apply, the concept is not a novel one.

30. In my judgement, party political activity or campaigning includes comment which is party political in character or motivated by party political considerations. This is particularly so where what is said does not flow directly and naturally from a factual account given to constituents of what their Member has been doing in a Parliamentary capacity. Even where it does, such comment should be expressed so far as is reasonable in non-partisan terms. So it would be acceptable, for example, for a Member to include in a publicly-funded newsletter a quote of reasonable length from Hansard illustrating their contribution to a debate, or to say in a report to their constituents: "I voted against the Government Bill on [ID cards]"; or "In a debate on [education], I spoke against the Opposition policy on [the future of A levels and supported an early move to the International Baccalaureate]"; or "I have criticised the local Council's policy on [street-lighting, because …]".

31. It is not in accordance with the House's rules, however, for a Member to include in a newsletter in respect of which he or she is claiming public funding comment of a party political character of the sort evident in Mr Steen's Spring 2004 "Westminster Report", comment which was in no way related to an account of what Mr Steen had been doing as an MP on behalf of his constituents.

32. Does the fact that Mr Steen met the larger part of the total cost of his "Westminster Report" from private funds and only the lesser part was met from public funds absolve him of a breach of the rules about the use of the IEP and therefore of a breach of the Code? Whilst this payment arrangement is something the Committee may wish to take into account (along with a number of other factors which I list below) when weighing what further action, if any, is appropriate, I suggest that the answer to the question I have just posed is 'no'. The rules are clear that the IEP must not be used to fund party political activity or campaigning. On the basis of the information given me by the DFA, these rules were introduced in order to move away from the previous system of pre-vetting by Departmental officials and split-funding (as defined in paragraph 10 above) of publications (about both of which I share the Department's reservations, for the reasons I go on to set out below). Consistent with the guidance issued by the Department, no party political material is allowable in a newsletter funded, whether in whole or part, from a Member's Parliamentary allowances.

33. It appears that Mr Steen had been advised by the Department in the past that split-funding of a newsletter was acceptable. However this advice was given prior to the introduction of the present arrangements towards the end of 2002, arrangements about which Mr Steen was aware and with which it was his responsibility to comply. It was clearly the intention of those arrangements to end split-funding in the sense in which I have defined it and, although the guidance issued to Members did not state this explicitly, it was an inference which could reasonably be drawn from that guidance.

34. On the evidence and for the reasons set out, I have reached the view that the comments by Mr Steen to which Mr Clayton objected did fall foul of the prohibition on party political activity or campaigning in publications funded by the IEP, and that Mr Steen was in breach of the provision of the Code requiring Members to use their allowances properly and strictly to observe the administrative rules relating to them. I therefore recommend that Mr Clayton's complaint be upheld.

35. If the Committee agrees with this conclusion, I invite it to take into account the following factors to which Mr Steen has drawn attention when weighing what, if any, further action is required:

i) The comment objected to by Mr Clayton amounted to 2 sentences in an 8 page report;

ii) The final page of the report was given over to an article by a Labour Member about the proposed EU constitution;

iii) Mr Steen met the greater part of the cost of printing and distributing the document from private (party) funds;

iv) Mr Steen had split the cost of funding earlier editions of his "Westminster Report" with the Department and believed he was acting on this occasion consistently with this and with advice he had previously received from the Department—although he had failed to recognise that this advice had been overtaken by the guidance issued by the Department to all Members in January 2003.

Wider implications

36. Whatever conclusions I reached on the facts of this case, I would have thought it right to report formally to the Committee about it because I believe the underlying issues raise wider questions. At the least, there appears, from this and other instances brought to my attention, to be uncertainty in the minds of some Members which the guidance issued by the DFA (originally in 2002 and updated in 2003) has not, apparently, resolved. The guidance may therefore need either amplifying or reinforcing.

37. There are 3 issues which may repay further consideration, and in connection with which the Committee may wish to take evidence from the House's Director of Finance and Administration:

i) What constitutes party political activity or campaigning;

ii) The vetting of newsletters by the Department;

iii) The split-funding of publications (where a Member's claim for reimbursement is abated if a publication is found to contain some party political material).

38. I have set out my views on the first of these issues, in the context of the present case, in paragraphs 26-31 above. Some guidance is also offered in the DFA's advice to Members reproduced in WE 3. In the light of the decision it reaches on the present case, the Committee may wish to consider whether that guidance can helpfully be clarified or amplified.

39. Secondly, I understand both the Speaker's Advisory Panel on Members' Allowances and the Department of Finance and Administration to have been uneasy about the former practice of Members being required to submit the text of newsletters to the Department for vetting in advance. I respectfully share their dislike of this practice. However, I understand that although Members are no longer required to submit their publications to the Department, they may still submit them for advice on whether or not they are acceptable if they so wish. I consider this practice too to be undesirable. I do not believe that it is either right in principle, or conducive to an appropriate working relationship, for officials to be required in effect to second-guess Members' political judgements. It also lays officials open to pressure to negotiate with Members on the point.

40. Members are responsible for the way in which they use their allowances and, as I have noted earlier, the concept of restriction to 'parliamentary purposes' is not unique to the Incidental Expenses Provision. If someone wishes to question what a Member has done in a publication funded from his or her parliamentary allowances, the proper course is for them to write to the Director of Finance and Administration or to complain to me. Such a complaint will then be handled in accordance with the House's approved procedures.

41. There is the danger that if a publication the Department has "passed" on initial vetting is subsequently the subject of a complaint, I could find myself second-guessing the view of the Department or (though perhaps less likely) feeling constrained by it. Neither of these would be desirable, and should if possible be avoided.

42. Thirdly, whilst I understand the possible attraction to Members of a split-funding arrangement as defined in paragraph 10 above (because it holds out the prospect that a document containing some party political material will nonetheless continue to receive at least a proportion of public funding), such an arrangement blurs the boundary between what is acceptable and what is not acceptable. It involves the Department in having to make arbitrary judgements about by how much to abate a Member's claim. Moreover it will not be clear to a member of the public reading a newsletter that pages 1, 3, 4 and 6 of it (which do not contain party political material) have been funded by the IEP but pages 2 and 5 (which do) have not. It would be clearer to both Members and the public if the current rule—which is that no party political activity or campaigning should be publicly funded—was strictly enforced. Thus if a publication contained any party political material, no claim in respect of it could be made against the IEP.

43. These issues are relevant not only to the funding of publications but of those Members' web-sites where the cost is met from public funds. This is a further reason why I submit that greater clarity on these matters is desirable and why I have felt it appropriate to report formally to the Committee on them in this case.