Written evidence from the Parliamentary Commissioner for Standards (OUT0016)

(1)               Introduction

1        The Committee has invited me to give oral evidence in the course of this inquiry; and the purpose of this note is to serve as an introduction to that evidence and to indicate some themes the Committee may wish to explore.

2        I set out in Annex 1 the background to the evolution of the present discussion of MPs’ outside employment and interests and my involvement in that discussion.

3        I explore the following themes below:—

(a)                principles-based rules;

(b)               transparency;

(c)                enforceability.

(2)               Principles-based rules

4        In correspondence between the Chair of the Modernisation Committee Chair and the Chair of this Committee (since published by each Committee), the Chair of that Committee said that within it there was:

“consensus among Members that the House should implement a qualified prohibition on paid outside interests, following a principles-based approach.” [1]

5        As my evidence to this Committee’s Landscape inquiry stated[2], I support a move towards a principles-based approach so far as possible, in line with modern regulatory practice. Putting rules on a principles-based footing should enhance Members’ confidence in compliance, as well as supporting fair and effective enforcement of the rules which is key to public trust in the parliamentary standards system. 

6        Principles-based rules emphasise the personal responsibility of Members for compliance, and enhance certainty if principles are set out clearly and simply.

7        In her evidence to this Committee, the Leader of the House as Chair of the Modernisation Committee underlined her position that there should not be a blanket ban on outside jobs.[3]  Her evidence to this Committee suggested that a balance needs to be struck between principles and rules, and I append the relevant passage from her evidence at Annex 2.  She has also stated that within that Committee there is “consensus among Members that the House should implement a qualified prohibition on paid outside interests, following a principles-based approach.”

8        The Committee may feel that the Code of Conduct and the Guide to the Rules already provide a model for balancing clear principles with specific rules to combine certainty and clarity.

9        In paragraph 16 of my note of 9 October 2024 to the Modernisation Committee[4] I suggest possible principles for outside interests in the following form:

“16              For example, the Committee might choose to recommend that the following principles should be reflected in any list or set of exceptions:—

(1) That Members are expected not to accept offers of paid outside interests that might detract, or appear to detract, from their ability to pay full attention to their parliamentary responsibilities.

(2) That Members are expected not to accept offers of paid outside interests that might create, or appear to create, actual or potential conflicts of interest of the kind mentioned in Rule 2 of the Code[5], or that are for any other reason generally incompatible with the Code.

(3) That Members are expected not to accept offers of paid outside interests that are made, or that a reasonable observer might think are being made, primarily because of their membership of the House (whether because the offeror was attempting to buy influence, to make lucrative connections, to take advantage of inside knowledge, or for any other reason not connected with a particular Member’s professional or commercial qualifications or experience).[6]”

10    Regulatory principles on their own cannot define specific requirements: they set overarching considerations, as reflected in the current Code of Conduct and Guide to the Rules (which provides that I cannot consider breaches of the Nolan Principles in themselves, but am required to take them into account when considering alleged breaches of the specific Rules).[7]

11    While the policy on permissible and impermissible outside interests is of course a matter for the Committee and, ultimately for the House, I have reflected on the principles set out in my earlier paragraph 16 and I remain of the view that they represent a serviceable starting point for a coherent policy on outside interests and employment.

(3)               Transparency

12    The Code of Conduct, in relying on openness as one of the Nolan Principles, emphasises its importance both as a virtue in its own right and also as being the foundation for an effective and enforceable system in relation to the other principles.

13    The Committee may wish to consider whether enhanced transparency in relation to Members’ outside interests might in and of itself focus the minds of Members and the public on the extent to which outside interests are properly compatible with membership of the House and, to that extent, might carry an element of automatic enforcement in the form of self-restraint.[8]

14    At present, Chapter 1 of the Guide to the Rules relating to the Conduct of Members requires the registration of outside occupations primarily, although not absolutely exclusively, where they produce emoluments. In particular, in accordance with Category 1 in Chapter 1 (Employment and earnings) Members are required to register salaries, fees and payments in kind and gifts received in recognition of services performed, along with details of allocation of time.

15    This already provides a serviceable basis for the disclosure of outside interests, and the Committee may wish to consider whether building on the present requirements could provide helpful additional transparency around Members’ outside employment and interests. 

16    In particular, the Committee may wish to consider whether moving the focus slightly from the purely financial remuneration aspect of registered employments, so as to include significant unpaid voluntary activities, would enhance the capture of potential conflicts of attention[9], adding to the existing mechanism of Chapter 1 of the Guide which primarily focuses on identifying potential conflicts of interest. 

17    The Committee may wish to consider how each Member pursuing an outside interest could demonstrate personal responsibility for making and maintaining their own principles-based assessment of the compatibility of their outside interests with the principles and rules that the House may decide to adopt in this area.  As one aspect of that, the Committee may feel that requiring or facilitating the addition of details to the Register of Members’ Financial Interests, as the House’s authoritative publication detailing Members’ interests, is the most effective way of delivering genuine openness of a kind likely to increase trust between Members and the public.

18    While this is very much a matter of policy for the Committee and the House, I would be very happy to explore with the Committee, in particular, the extent to which requiring or facilitating Members to publish details of their external commitments could be helpful and effective.

(4)               Enforceability

(i)                             Principle

19    I believe it to be generally accepted that public confidence in MPs and Parliament in the matter of outside interests, as in other matters, can be enhanced only by rules which are seen to be implemented and enforced effectively.

20    Articulation of principles in themselves may simply accentuate the scope for them to be disregarded.

21    The Code of Conduct presently lays down the Nolan Principles as over-arching objectives, but it expressly links enforcement activity not to the principles but to clearly articulated rules.  A number of the rules provide for considerable discretion and judgment by Members, for which in the first instance they are personally responsible, as a result of which some rules become candidates for investigation of breaches only in extreme and obvious cases: but the principle of enforceability as underpinning the credibility of the rules as a whole is a principle that the Committee may feel should apply to any emerging policy on outside interests as to all others (and as it already does in relation to the rules in Chapter 4).

22    In this section I examine:

(a)                the possible use of objective benchmarks in the form of lists and maximum thresholds; and

(b)               the articulation of rules based on principles.

(ii)                           Lists, and maximum hours / earnings

23    In paragraphs 17 to 22 of my note to the Modernisation Committee I discussed the question of listing permitted or not permitted occupations, and raised some issues about how effective lists would be likely to be for the purpose of giving effect to a principles-passed approach in a coherent and credible way.  The same doubts arise in relation to the prescribing of maximum amounts of time that members may spend on outside interests, or on the maximum amount of earnings they may derive.

24    I note that the Leader of the House as Chair of the Modernisation Committee in her evidence to this Committee[10] appeared to share doubts as to the utility of lists, and capped maximums.  I append relevant extracts from her evidence at Annex 3. 

25    The Committee may feel that at least to some extent, both as to conflict of interest and as to conflict of attention, how Members carry on their outside pursuits matters as well as what those pursuits are, how long they take and how much income they produce. In particular, a Member in a particularly high-earning role might earn a very large amount of money in a short time in an occupation that created conflicts neither of interest nor of attention, while another Member might undertake a purely voluntary role that absorbed so much of their time as to make it impossible for them to concentrate properly on their parliamentary responsibilities.

26    Lists of occupations, and limits on hours or sums of money, would have the capacity to create anomalies and unfairness without contributing to the coherence of policy or, therefore, enhancing public trust in politicians as a class, which is ultimately the underlying aim of the Code as a whole.

(iii)                         Rules of conduct

27    Were the Committee to decide against recommending the adoption of lists of occupations or maximum hours or earnings for outside interests, that does not necessarily mean abandoning the objective of laying down new rules about outside interests and employment that provide clarity and certainty and can be enforced effectively.

28    The previous Committee on Standards considered[11], as part of its review of the Code of Conduct, if my role could be tasked with adjudicating on whether MPs’ outside interests impacted on their ability to perform their parliamentary duties, and concluded it could not.  I set out the Committee’s reasoning in Annex 3, and I agree with its reasoning and conclusions.

29    However, the Committee may wish to consider the extent to which each of the three principles set out in paragraph 9 above is capable of being incorporated into specific and enforceable rules as new components of the Guide, perhaps by way of expansion of the present Chapter 4 (Outside interests).

30    I should be very happy to discuss with the Committee the extent to which each principle is capable of being articulated as an enforceable rule with the necessary clarity and certainty.  For the present I would make the following observations. 

(1)               A rule about not entering into commitments that make it impossible for a Member to perform their parliamentary responsibilities would be likely to attract a high threshold, as for other rules of the Code (notably Rule 11 – reputation).  In essence, it would be likely to be possible to evidence a clear breach that the Committee would be comfortable sanctioning only in egregious cases (such as, perhaps, a Member accepting a media commitment that required them to leave the UK for a sustained and substantial period).  But the rule would stand as a principle for Members to consider when entering into commitments, against which they could test their undertakings (perhaps cast as a “reasonable observer” test in the same way as the relevance test in paragraph 6 of Chapter 2 of the Guide).

(2)               A rule based on the second principle, avoiding conflicts of interest, would link back to the existing Rule 2 and would become, in effect, a specific articulation of an aspect of that rule.  I see no reason why that should not be enforceable, in clear and evidenced cases, as for the other Rules.

(3)               As to the third principle, a rule against accepting roles which were, or might to the reasonable observer appear to be, offered primarily as an attempt to purchase influence arising out of a person’s membership of the House, would directly address the suggestion that companies are buying or attempting to buy political influence simply by offering directorships or other positions to MPs who are in no other way qualified or fitted for the role.   (Members are, of course, invited to undertake media interviews and the like by reason only of their membership of the House: but not for the purpose of acquiring influence – rather, commenting publicly on matters of public interest is a core part of the way in which many Members see their parliamentary responsibilities.)

Conclusion

31    I will be happy to discuss any of these matters with the Committee and to provide any further information or advice that would be helpful.

Daniel Greenberg CB

11 March 2025

Annex 1

Background to PCS involvement in the Committees’ work on MPs’ outside interests and employment

1. Following the General Election, I provided advice on request to the Leader of the House (copied to the Shadow Leader and other parties’ Business Managers) on the incoming government’s manifesto commitment to remove two of the three existing exemptions to the ban on paid parliamentary advice ((a) advice on public policy and current affairs and (b) advice in general terms about how Parliament works) and its general policy on MPs’ outside interests[12].

2. Once the House had approved the Government motion to remove those exemptions (with effect from 25 October 2024), I published a revised Advice Note, providing a template for contracts complying with the relevant paragraphs in Chapter 4 of the Guide to the Rules. [13]

3. On 25 July, the House of Commons approved a motion to establish a new Modernisation Committee tasked with reforming House of Commons procedures, driving up standards and improving working practices. That Committee endorsed a Memorandum to the Modernisation Committee from the Leader of the House (who is also the Chair of that Committee), setting out some strategic aims and priorities for reform, including under the heading of suggested initial priorities: 

“In particular, the Modernisation Committee should maintain the focus on the role of paid advice in members’ professional lives. It should consider what advantages, if any, outside paid engagements, such as media appearances, journalism and speeches furnish to the public, versus the potential conflicts of interest and attention that arise from such paid endeavours.” [14]

4. On my role and potential involvement, the Leader’s memorandum noted:

“The Modernisation Committee will wish to consult closely with the Parliamentary Commissioner for Standards, who is best placed to advise on the practicability of any further changes to the rules governing members' outside interests.” [15]

5. At the invitation of the Modernisation Committee I provided a private briefing to that Committee on 15 October 2024, having first submitted to that Committee my preliminary advice (since published by that Committee on 31 January 2025) on the following basis:

“The Leader has subsequently invited me to offer some initial thoughts on this subject by way of advice to the Committee. This note constitutes preliminary advice, and should be treated as no more than an attempt to provide a constructive basis for the Committee’s discussions, which I will be very happy to facilitate in any way helpful.” [16]

6. Pursuant to House of Commons Standing Orders, I am also the advisor to this Committee, which announced on 31 January 2025 its own inquiry on MPs outside employment and interests[17], subsequent to an invitation from the Modernisation Committee, set out in correspondence published by each committee.[18]

7. As the Leader’s memorandum to the Modernisation Committee, and my subsequent memorandum to that Committee make clear, my role is to advise on the practicability of relevant policies being considered and potentially recommended to the House by the Modernisation Committee and the Committee on Standards, respectively.  The Committees will of course reach their own conclusions and formulate their own recommendations, and the House will ultimately decide any changes to the present policy on MPs’ outside interests.

Annex 2

Leader of the House Evidence to Committee on Standards

on Members’ Outside Interests and Employment[19]

(1)   Principles-based regulation

Q10: “So how do we best go forward? I think it is by tightening the rules in such a way that there would not be a perception that there are still means by which people can get around them, and we still have a myriad of stories where we have some of these issues. I have thought at great length about whether producing a list of professions, putting a cap on monetary value, or considering a cap on hours or something like that is a solution.

The extensive conversations that I have had privately and that the Modernisation Committee has had with the Parliamentary Commissioner for Standards led me to the conclusion that those solutions all have much bigger pitfalls and problems—in terms of policing and oversight, and setting exhaustive amounts or appropriate or reasonable things—than going down a principles-based approach.

Would that mean that someone who was a lawyer as well as being a Member of Parliament could earn a lot of money and spend a lot of time providing legal advice? Well, yes, they could. Under these principles, could somebody who already had a media contract before they were elected then continue that afterwards? Well, probably they could, because they would argue that they have not monetised being an MP, unless you take the view that the conflict of interest is a greater concern in that situation. There are still going to be such situations. I think we need to explore going further because the exemption as it currently exists, and the rules as they currently exist, allow too many incidents where there is a public perception of a conflict of interest and that people are getting extra earnings because they are a Member of Parliament. That, in itself, tars us all with the same brush.

(2)   Use of lists

Q3: “I have been very taken with the advice from the Standards Commissioner on looking at a principles-based approach and how we can be even clearer about the intention and purpose of the rules, and what kind of outside interests are or are not of interest. I share the view that many hold that having Members of Parliament who are also lawyers or doctors or who have businesses that they previously had before coming to Parliament adds to the House as a whole in terms of expertise. That is why I do not think that producing a list of permitted jobs or careers is particularly effective.”

Q10 “So how do we best go forward? I think it is by tightening the rules in such a way that there would not be a perception that there are still means by which people can get around them, and we still have a myriad of stories where we have some of these issues. I have thought at great length about whether producing a list of professions, putting a cap on monetary value, or considering a cap on hours or something like that is a solution. The extensive conversations that I have had privately and that the Modernisation Committee has had with the Parliamentary Commissioner for Standards led me to the conclusion that those solutions all have much bigger pitfalls and problems—in terms of policing and oversight, and setting exhaustive amounts or appropriate or reasonable things—than going down a principles-based approach.”

Q18: “When you drill down into what “exemptions” means—and I think that is where we all are; we recognise that there are some exemptions—do you go down the route of writing up that list? Is that the fair way of doing that? What does that mean in relation to, let’s say, someone who has a business when they arrive here? Do they have to completely divest themselves of that business within a matter of weeks? It is not just about professional qualifications. There are other examples that I think we could all accept are reasonable for someone to retain through their time as an MP, but when you try to draw up that list, it is impossible to make it exhaustive and appropriate. You will always find things that, with hindsight, you could reasonably suggest should have been on that list in the first place. That is why I have arrived at the idea of a principles-based approach because I think that does the job without getting you to a difficult place of, “Is this okay?”

Annex 3

Committee on Standards commentary on enforceability of rules on Outside Interests

The previous Committee on Standards considered[20], as part of its review of the Code of Conduct, if my role could be tasked with adjudicating on whether MPs’ outside interests impacted on their ability to perform their parliamentary duties, and concluded it could not [emphasis added]:

“ 185. The CSPL argued in its report [Committee on Standards in Public Life, 19th Report, MPs’ Outside Interests, published 3 July 2018] that the Parliamentary Commissioner for Standards already makes judgments as to whether “the activities of MPs, for example the use of parliamentary resources, are for ‘parliamentary activity’” and that this principle “can, therefore, be extended to how an MP’s outside interests could impact on their parliamentary role”. [fn 94 Committee on Standards in Public Life, 19th Report, MPs’ Outside Interests, published 3 July 2018, p 40]  It is true that when the Commissioner considers whether a Member has misused parliamentary facilities, she is testing whether something is or is not a ‘parliamentary activity’, but a Member’s time, especially their time outside normal working hours, is not a parliamentary facility. If the House were to introduce a rule that remunerated or unremunerated outside activity must be within “reasonable limits” it would be asking the Commissioner, and, in cases referred to it, this Committee, to make a highly subjective judgment about how a Member spends their time. It is difficult to see how the Commissioner could investigate whether a Member’s remunerated or unremunerated outside interest had impacted on their ability to perform their parliamentary duties without making judgements on whether the Member concerned was sufficiently diligent. The Commissioner already gets many vexatious complaints every year about which way their MP has voted, what they have said, how they have responded to emails and enquiries and what events they have or have not attended. As we discuss earlier, these are rightly beyond the scope of the Code, and therefore outside the remit of the Commissioner to investigate. We fear that a rule specifying that ‘any outside activity undertaken by a Member, whether remunerated or unremunerated, should be within reasonable limits and should not prevent them from fully carrying out their range of duties’ would require the Commissioner to make highly subjective and potentially partisan political judgements about a Member’s use of time, their priorities and their performance as an MP. In short, she would constantly be asked to decide whether a Member had fully carried out their range of duties. That is a matter for the voters to decide, not the Commissioner or the Code.”