Written evidence from the Institute for Government (LAN0009)

The Institute for Government is the UK’s leading independent think tank working to make government more effective. This submission was prepared by Tim Durrant (Associate Director, IfG), Alice Lilly (Senior Researcher, IfG) and Hannah White (Director, IfG).

What does the current landscape of bodies and processes regulating MPs (including MPs who are also Ministers) look like to the public?

Anecdotal evidence suggests that the current landscape, with its various bodies each responsible for regulating different aspects of MPs’ roles, is confusing to the public and the media. We have heard from former parliamentary commissioners for standards that their office has spent lots of time fielding calls from confused members of the public unable to understand where to take their complaint (and when they felt an MP had breached the Nolan principles, unable to understand why no one was able to investigate/sanction that).

Different systems for MPs and ministers (and overlap between the two) are not well understood. We also know MPs who become ministers and vice versa find the change in reporting requirements very confusing. One example of confusion was the 2021 letter from Angela Rayner MP to the chair of CSPL, Lord Evans, asking him to investigate a potential breach of the ministerial code – something not within the remit of CSPL. While greater coverage of the ministerial code in recent years has probably meant this is now better understood, it is still clear that the system needs better explanation.

Beyond confusion over which body is responsible for investigating which category of MP, there are cases when all the different systems of rules have been exposed as ineffective and unable to deliver what the public expects. The Greensill/Cameron case is a good example of where everyone had a sense that what the former prime minister had done was wrong but no one could actually find an example of a rule that he had broken. This means that the system has enough overlaps to be confusing, while also not preventing there from being gaps in the system.

The fact that the system is piecemeal means that there is no one body with overall responsibility for communicating what the landscape looks like. The CSPL has done some good work in this area but there is more that both parliament and the government could do to explain how things work more clearly.

Whilst the history of the standards system in Parliament and Government is piecemeal, does the system have coherence? Are there obvious anomalies?

The system has never been planned, but has evolved in response to specific scandals, both in parliament and in government. This means it does not have overarching coherence.

The fact that ministers who are MPs can fall into different categories for standards investigations depending on the role they are playing at the time can make things more complex. As the former chair of the Committee has set out, the disparity between when MPs have to report hospitality they received and when ministers have to declare it is a clear anomaly. And allegations of bullying towards a minister would be covered by the behaviour code for members if they applied to behaviour on the parliamentary estate, but would fall under the ministerial code and the jurisdiction of the prime minister if anywhere else.

This lack of coherence means there is a greater likelihood of MPs getting things wrong in terms of their reporting (both the prime minister and the leader of the opposition have been found to have made mistakes in reporting their interests to the parliamentary register in the last year). This also perhaps makes it easier for MPs to use the excuse of confusing rules to justify failure to declare interests properly.

Are there ways in which different processes, or the relationship between different bodies, could be streamlined for MPs?

Taking both of these questions together, there are certainly things that could be done to simplify and streamline processes, even while different rules will inevitably apply to different categories of people (particularly ministers and backbench MPs). The committee has already recommended aligning ministerial and MP hospitality declarations – that would make things easier to understand, and the government has made some steps in this direction, although it is not planning to update ministers’ hospitality registers on a fortnightly basis (and has not yet set out when it will be moving to monthly publications).

Generally, greater alignment across systems would make sense. One other option would be to merge the ICGS and the wider standards system, giving the IEP responsibility for overseeing all standards issues relating to MPs. In this scenario the committee, and the Commons as a whole, would still be responsible for setting the rules around standards expected of MPs, but the job of investigating potential breaches of those rules would be taken away from MPs.

MPs may not support this proposal, as it would remove some power from them to make decisions about what sanctions an MP found to have broken the rules would face. But, as with the current IEP process, more serious sanctions would still be referred to the House for a final decision.

Similarly, the government would be likely to resist greater moves to align reporting between ministers and MPs, as they may argue it would take away the ability of the prime minister to enforce the standards expected across the executive. The executive has historically been reluctant to allow parliament greater oversight of the standards expected of ministers. However, aligning transparency reporting would make the information provided by parliament and government more consistent, and would allow outsiders (the media and the public) to monitor lobbying and other interactions across different categories of people.

How do political party processes and formal regulatory processes interact? Should there be greater consistency in internal party processes?

The interaction between parties’ standards processes and House processes is very confusing and opaque. The ideal situation would be all parties agreeing to a common, transparent process for dealing with their own party complaints, in which each party runs their own process, but they all do it the same way. This would ensure that staff for each party can expect equal treatment and support. Of course, this common process would have to be developed by the parties working together.

Realistically, establishing a common and transparent process across political parties for dealing with complaints is likely to prove difficult. While it should remain the ultimate goal, even steps towards this would be welcome improvements on the current system. In particular, greater transparency from each political party about what their complaints process is, and how it works, would be valuable. This should be published and clearly accessible via political parties’ websites, and updated as required.

Could the role and remit of different bodies be better explained or promoted?

The confusion that members of parliament and political journalists face show that there is a clear need for better explanation of what the different bodies do and how they work together.

Using simpler language and clear signposting for those outside parliament, who are not familiar with its specific vocabulary, would be useful. A clearer webpage dedicated to standards issues – possibly including some kind of diagram to set out the bodies and processes involved – will be helpful for those who want to raise concerns and/or understand the existing standards landscape. Because this would be factual and explanatory, there should be no problem with the House of Commons as an institution setting out this information on its website for the public. There is a risk that if the Commons does not clearly set out and explain the system itself, then nobody else will—meaning that those outside parliament will continue to struggle to understand the system.

For those inside the Commons– Members and staff – some form of training would be helpful. Members are already provided with training on the expenses system; and providing similar training on what standards rules are and how they are enforced would be very helpful. This training should be compulsory, with party whips ensuring Members attend, and it should provide anonymised case studies of where people have fallen foul of the rules. This training could be incorporated into post-election inductions offered by the House authorities for new Members, with refresher training offered for others.

Could there be an easier way for members of the public to make complaints or raise concerns about conduct, where they are not sure which body has oversight?

As we understand it, the various bodies within parliament do attempt to work together to manage complaints and pass them on to the correct office if they end up in the wrong place. Clearly, the more they can do this, the better. Similarly, when bodies write back to high-profile complainants, they could pass on the complaint to the relevant office as well as explaining why they are the wrong people to be in touch with.

Similarly, some form of simple signposting system online would be helpful. Currently, for example, the webpages of the Parliamentary Commissioner for Standards set out how to make a complaint, but to find out what kind of complaint the Commissioner can investigate, a visitor to the website has to open a PDF report from the House of Commons and scroll down to find a definition. Making this information available on the first page of the Commissioner’s section of the website would mean it was easier for people to know what they can and cannot complain about to the Commissioner. Similarly, pointing to other organisations who deal with other types of complaints (and setting out what those types of complaints are) would make it easier for people to understand.

This could be combined with the webpage setting out and explaining the standards landscape—outlined earlier in this submission—to create a ‘one-stop-shop’ for those wanting to understand the existing system, make a complaint or raise a concern about conduct.

Does the Recall of MPs Act 2015, and other legislation relating to the disqualification of Members, operate satisfactorily? How could it be improved?

The Recall of MPs Act was designed to ensure that elected Members retained a say in the potential disqualification of MPs, both in terms of allowing the Committee on Standards to recommend a sanction in the case of an MP judged to have broken the rules, and the ability of the Commons as a whole to vote on the recommended sanction. It also allows the electorate a say in any potential recall of a Member, through the recall mechanism. This means that the principle of MPs sitting as elected Members, ultimately accountable to their constituents, is maintained.

The interplay between any sanction recommended by the Committee, and the possibility of recall (if the recommended sanction is a suspension from the House of 10 days or more), is clearly something that Members of the Committee are aware of when considering ant potential sanction. For example, in the Committee’s March 2023 report into the conduct of the Member for Rutherglen and Hamilton West, the Committee noted that it “has had to take account of the effect of the Recall of MPs Act 2015. The recommended sanction, if approved by the House, will trigger the possibility of recall. We believe the operation of the Act requires review.”

While it is understandable that the current system means that MPs on the Committee—and in the broader House—may feel conscious that their decisions could ultimately lead to the recall and disqualification of another Member, this is ultimately the only way of ensuring the continued involvement of MPs in the recall process. If MPs do not wish to have this responsibility, it would require the process to be handed over to an independent body—for example, the Independent Expert Panel or a similar body. Such a move would be likely to dissatisfy many Members for not giving them enough of a say. Ultimately, this will always be a fundamental tension within the system.

It is also important to recognise that there is not a clear and automatic line between any sanction that may trigger recall and an MP actually leaving office. The Commons as a whole has the opportunity to vote on any sanction recommended by the Committee, and then constituents of an MP are able to have their say during any recall process and any subsequent byelection. For example, in the case of the Member for North Antrim in 2018, a sanction triggering a recall petition was agreed—but the petition was unsuccessful and the MP retained their seat.

However, since the Act was passed in 2015, there have been a number of changes to the landscape of institutions and processes relating to MPs’ conduct—particularly the establishment of the Independent Complaints and Grievance Scheme (ICGS). A review for what these changes mean for the Act would be welcome, and could take the form of post-legislative review.

What can be learned from parallel processes in other parliaments/assemblies within the UK and elsewhere?

In Northern Ireland, the Commissioner for Standards is appointed by the Northern Ireland Assembly to uphold the codes of conduct for both MLAs and ministers in the Northern Ireland government. As the Executive and Assembly are not currently functioning, the Commissioner’s most recent reports have not yet been assessed by the Stormont Standards Committee. But the fact that the standards of both categories of politician are overseen by one office-holder means that there is clarity within the system over who can deal with complaints.

The Northern Ireland standards regime is also set out in legislation, in the Functioning of Government Act 2021. This Act sets out how standards are overseen and introduces various criminal offences which are applicable only to ministers and their special advisers. The legislation arose after the previous collapse of the devolved institutions and was a way of taking forward some of the proposals of the ‘New Decade, New Approach’ agreement which saw the resumption of devolved government in Northern Ireland. Of course, the context is very different to that at the UK level but the Northern Ireland experience is nonetheless a useful comparator for Westminster.

In Canada, the Conflicts of Interest and Ethics Commissioner is an officer of the Canadian House of Commons who oversees rules on conflicts of interest and other ethical considerations that apply to both ministers and members of parliament (as well as other public office holders, like board members, and ministerial staff). The work of the Commissioner derives from the Conflicts of Interest Act, so their work is more narrowly focused than that of the commissioner in the UK House of Commons (i.e., they do not have oversight of wider behavioural issues among MPs). The commissioner is able to levy (token) fines for MPs and ministers who break the rules, which act as a signal that certain behaviour is not acceptable. The fact that the commissioner oversees all MPs and ministers makes it easier for the public to know who is responsible for upholding the terms of the relevant legislation.

September 2023