Chapter 4

REGULATING CONDUCT IN THE HOUSE OF LORDS

4.1 This chapter outlines the history of recent developments in conduct issues in the House of Lords before considering whether any change in approach may be desirable.

Recent developments in the House of Lords

4.2 In 1974, the Sub-Committee on Registration of Interests was appointed by the House of Lords Procedure Committee following a decision in principle by the House of Commons to establish a compulsory register of interests for Members of Parliament. The Sub-Committee had a large and distinguished membership of 22 peers, including the then Lord Chancellor, Lord Elwyn-Jones.

4.3 The background to the action by both Houses was, as the Sub-Committee's report put it, "the suspicion that all is not well in public life", which must have been a reference to the Poulson scandal.¹ The Sub-Committee's report continued:

Both Houses have therefore decided to review their practice, in order to ensure that they do their business openly and honourably and to pursue the common aim of honest, wholesome government in which people can trust. For honest, wholesome government to be achieved the motives of the country's legislators must be overt; it must be possible to draw a line between the 'public interest' of members of Parliament and their 'personal interest'; and Parliament should make plain when the public actions of its members might be influenced by their personal interests.²

4.4 In reading the 1974 Report, the Committee was struck by the similarities with the circumstances of our enquiry, and the arguments presented. As with our enquiry, the Sub-Committee's report was not stimulated by "any fear of abuse within" ³ but by a recognition that it was very important "that the procedures of the House should be accepted as open and honest by the public as well as by Peers". ⁴

4.5 The 1974 Report reviewed the procedures for declaring an interest during a debate and the arguments for introducing a mandatory register of interests. We draw on the detail of the 1974 Report in the chapters below. However, we record here the principal arguments that were then adduced for and against a mandatory register. They bear many similarities to the evidence we heard:

Arguments in favour:

• It was wrong in principle for the House of Lords, as one half of the legislature, not to follow the Commons' lead and adopt a similar procedure. The (then) Leader of the Opposition, the Rt Hon Lord Windlesham, said in evidence: "that would put the House in a position of exceptional privilege which I think it would be difficult to justify". ⁵
• It was important that the procedures of the House should be accepted as open and honest by the public as well as by peers.
• The major advantage to the House was to overcome the problem of voting with an undeclared interest.
• The major advantage to the public and press was that a register provided "a checklist by which the impartiality of a Peer's action can be judged". ⁶

Arguments against:

• The differences between the two Houses, the most important of which was the House of Lords' unique tradition of managing its own affairs without recourse to rules of order: "it relies and thrives on self-discipline, and the honour of its members is the kernel of its procedures". ⁷
• Following from that point, and because of the terms of the Writ of Summons, the House of Lords had no sanctions against a member who refused to abide by a compulsory register.⁸
• Many peers were members of the House 'involuntarily' (by virtue of heredity) and so could not choose "to guard their privacy by remaining outside the House". ⁹

4.6 Having put the arguments for and against a compulsory register, the Report concluded:

that a register is unnecessary for the internal requirements of the House and that a non-statutory compulsory register is not feasible. External considerations following on the decision of the House of Commons to institute a compulsory register must be weighed in the balance against this ... the decision is left to the House. ¹⁰

4.7 The Report also made various recommendations to improve the procedure on declaring interests during debates.

4.8 In the event, despite the eminent membership of the Sub-Committee responsible for the 1974 Report, it was neither published nor debated. So the House did not reach a conclusion on the arguments raised in the Report.¹¹ De facto the outcome was that no register, either compulsory or voluntary, was introduced at that stage. The emphasis continued to be on declaration during debate as the principal instrument of disclosure of interests, but without the improvements suggested in the 1974 Report.

4.9 It was to be another 16 years before the issues raised in the 1974 Report were considered by the House. In response to "a series of incidents" in the previous session,¹² in 1990 the Procedure Committee again addressed the issue of the practice of the House in relation to members' interests. Following the report of the Committee,¹³ the House of Lords adopted revised guidance in relation to the declaration of interests.¹⁴ This guidance followed very closely the text suggested in paragraph 23 of the 1974 Report. The opening sentence read: "It is a long-standing custom of the House that Lords speak always on their personal honour". The full text is set out in Appendix C to this Report.

Establishment of Committee on Standards in Public Life

4.10 This was how matters stood in the House of Lords when the Committee on Standards in Public Life was established in October 1994.¹⁵ The Rt Hon Lord Nolan, the first Chairman of this Committee, had originally intended that the Committee's first enquiry should extend to the House of Lords and he wrote to the Leader of the House in November 1994 with that purpose in view. However, in December 1994, a sub-committee of the Procedure Committee of the House of Lords, under the chairmanship of the Rt Hon Lord Griffiths, was appointed by the House "to consider the practice of the House in relation to financial and other interests of members, and in particular the case for a register of interests". The sub-committee was called the Sub-Committee on Declaration and Registration of Interests.

4.11 Given the overlap between the work of this Committee and the Griffiths Committee, in February 1995, Lord Nolan wrote to Lord Griffiths suggesting that the Committee on Standards in Public Life should defer consideration of issues relating to the House of Lords until the Griffiths Committee had completed its work. Once the Griffiths Committee had reported, the Committee on Standards in Public Life could take its conclusions into account, before submitting any recommendations for the consideration of the House.¹⁶

4.12 The Griffiths Committee agreed with this course of action. The Committee on Standards in Public Life was the first to complete its task: its report (dealing inter alia with standards of conduct in the House of Commons) was published in May 1995.¹⁷ The Griffiths Committee published its report two months later.¹⁸

The Griffiths Report

4.13 The Griffiths Committee considered issues relating to conduct in the Lords and a register of peers' interests. It also sought to address the concerns arising from the growth of parliamentary lobbying and of parliamentary consultancies. Their recommendations were based on the guiding principles that:

1. Lords should act always on their personal honour; and

2. Lords should never accept any financial inducement as an incentive or reward for exercising parliamentary influence.

4.14 The Report went on to recommend:

• The establishment of a register of interests containing three categories: two 'mandatory' and one 'discretionary'.
• Members who held paid parliamentary consultancies or who had financial interests in a business involved in parliamentary lobbying on behalf of clients would be subject to strict limits on how they could participate in parliamentary proceedings.¹⁹

4.15 The Report of the Griffiths Committee was debated in the House of Lords on 1 November 1995 ²⁰ and its recommendations were accepted. These were expressed in Resolutions agreed to by the House on 7 November 1995 and have been incorporated into the 18th edition of the Companion.²¹ We reproduce the text of the Resolutions in Appendix D.

4.16 These Resolutions currently constitute the code of conduct for the House in respect of disclosure of interests. The Resolutions make provisions for the investigation of allegations of failure to register by a sub-committee appointed by the Committee for Privileges. This sub-committee, entitled the Sub-Committee on Lords' Interests, includes a number of Lords of Appeal as does its parent committee.²² To date, there have been no alleged failures to register and no allegations of any failure to abide by the rules governing peers' activities in the House following registration of their interests.

4.17 In fact the Sub-Committee has met only twice. These meetings took place soon after it was established in 1995 to provide advice on the operation of the register. At one of those meetings, in January 1996, the Sub-Committee considered a draft of the first edition of the register and the suggestion that "some peers had made excessive use of category (3)". It gave a ruling that "though the Registrar should discourage [long] entries, the Resolution left each Lord free to enter in category (3) whatever he chose".²³ The outcome of the meetings was not reported to the House but was reflected in the procedures adopted by the Registrar. ²⁴

The operation of the Griffiths Report

4.18 Lord Griffiths, who was Chairman of the 1995 Committee, gave us some of the background to the production of its report:

We had a very long-ranging debate ... it ranged from those who thought that there should be a compulsory Register ... and those who said 'I would go to the stake against such a Register'.... I was given clearly to understand ... that if we had attempted to introduce a compulsory registration system ... that a number of peers would have left the House rather than make their whole interests public ... I am pretty sure we went as far as we could, then. ²⁵

4.19 It is clear from this evidence that the Griffiths Report matched the mood of the House at the time. Given that it introduced a register, albeit partly voluntary, for the first time, it was a major development in the procedural regime. Many members of the House of Lords told us that it had been successful. For example, the Rt Hon Lord Trefgarne, representing the Association of Conservative Peers, said:

it has worked very well. Those arrangements have been in place for several years and I know of no public disquiet that they have not been adequately observed. I know of no concern within the House that anybody has abused those arrangements and has not ... declared an appropriate interest. ²⁶

4.20 As we have made clear from the beginning of our enquiry, we agree that there has been no general public disquiet concerning members of the House of Lords. The procedural mechanism to deal with allegations of individual misconduct has never been used. We also note that Mr Vallance White, the Registrar of Lords' Interests, was reported as saying that "there is no interest in [the Register] whatever".²⁷

4.21 The maxim that was frequently put to us was 'if it ain't broke, don't fix it'. However, as the Attorney General, the Rt Hon Lord Williams of Mostyn, commented: "I would say that we do not know whether it is broken or not", adding that it is often only when a crisis emerges that a system appears to be faulty.²⁸ Lord Dixon-Smith pointed out the dangers of leaving remedies until after such a crisis: "no purpose will be served if no mechanisms of public re-assurance are put in place until after damage is done by lax behaviour". ²⁹ A similar point was made by Lord Biffen: "I think we still have something which is to be treasured. It is precisely because of that that one has to take the pre-emptive step ... and not be chivvied and chased by some miserable incident that is then blown up by those who have no faith, no interest and no affection for the institution". ³⁰

The principle of honour

4.22 Lord Biffen also said: "I plead that the House of Commons and the second chamber have long and very honourable reputations in public service and I contrast that with what happens in many neighbouring countries where there is a great deal of corruption".³¹ We ourselves commented in our last report on the high standards in public life in this country and on the resulting greater freedom from corruption and malpractice.³² However, in the same report we also drew attention to another factor, namely "the deep natural scepticism" of the British public towards their politicians.³³

4.23 Although we received few submissions from members of the public during our enquiry, ³⁴ one spoke of the continuing need to counteract the "low level of regard ... for politicians in general." ³⁵ Another said "that good men and women exist in the Houses of Parliament is not in dispute. The assumption that the members of the Houses of Parliament show a higher sense of morals and behaviour than the wider public is". ³⁶

4.24 As outlined in Chapter 2, the test of personal honour is a longstanding and revered one in the House. The Rt Hon Lord Mackay of Ardbrecknish, Deputy Leader of the Opposition, said: "peers are on their honour to make a disclosure if they take part [in a debate]. That may be an old-fashioned approach, but it seems to have worked".³⁷ Indeed, some witnesses thought that reliance on the principle of honour could be harmed by the introduction of more detailed rules.³⁸ We see great force in the related point that too many rules interfere with the duty resting on an individual to exercise his or her own judgement. The Rt Hon Lord Owen, for example, suggested:

it is much better, in my experience in public life, to put people on notice of good behaviour, and I think they then exercise it, whereas if you have everything done by rules, they start getting away with it.³⁹

4.25 Other witnesses, while respecting the House's adherence to the code of personal honour, felt that it could be too subjective and imprecise a term on its own for regulating standards of conduct. It was suggested that other important principles needed stating explicitly. In particular, the key principle of transparency was mentioned. Baroness Young of Old Scone, for example, said: "the issue of transparency is so important in allowing people to understand what informs what we say and what predispositions and interests might shape it".⁴⁰

4.26 The view that members of the House of Lords, as parliamentarians, are holders of public office cannot be gainsaid. We agree that the principle of openness is paramount in ensuring high standards of conduct in public life. We have also drawn attention in Chapter 2 to similar principles operating in the business and professional sectors. It is now everyday practice for codes of ethical conduct to be adopted in both public and private institutions. We would find it difficult to formulate any justification for the House of Lords today being different from such public and private bodies. As Lord Tugendhat put it: "one has to ensure that one is operating according to the standards that are prevalent within society at a given time ... it would appear to me odd if standards of disclosure in the legislature of our country were based on significantly different principles than those required in a great many other walks of life". ⁴¹

4.27 As we said in Chapter 2, we respect the principle of 'acting always on personal honour'. At present, however, the 'honour' principle seems only to be expressed in the context of the rules governing Members' interests (in the form in which they were recommended by the Griffiths Committee and adopted by the House in 1995). Thus, in the House's procedural guide, the Companion, the term appears only in the chapter entitled 'Rules of Debate' and under the sub-heading 'Financial Interests' where the 1995 Resolutions are set out.⁴² Our witnesses often spoke of 'honour' as part of the governing ethos of the House. We suggest it would be a logical extension for the principle of honour to provide the foundation for a somewhat more wide-ranging code of conduct, and, as Lord Simon of Highbury put it, "it might be helpful to give people a little background on what is meant by 'honour'".⁴³

A code of conduct

4.28 In suggesting this, we return to the framework established by the First Report in setting out key principles and reinforcing them with mechanisms such as codes of conduct. There are two principal reasons for a code of conduct:

• To provide clarity for, and ensure consistency between, members of an institution as regards standards of conduct;
• To provide the openness and accountability necessary to ensure public confidence.

Clarity and consistency

4.29 The philosophical argument for clarity was put by the Archbishop of Canterbury in a speech in the House of Lords when the establishment of this Committee was debated in 1994:

But since the right motivation is not enough by itself, all of us need guidelines and codes to help us realise the good intentions in practice. Such codes are vital for institutions as well as individuals, mobilising authority and peer pressure behind ethical norms and translating general values into specific expectations. ⁴⁴

4.30 In that context, it is noteworthy that many of our witnesses, including some senior and experienced peers, were concerned about the possible confusion and lack of clarity under the present system. Lord Plant of Highfield told us of a difference of interpretation that he had experienced over the need to register a grant from a charitable foundation. He said "it seems to me ... a mistake that the criteria are sufficiently broad to allow something that seemed so obvious to me to be a matter of interpretation". ⁴⁵ Both Lord Tugendhat ⁴⁶ and the Lord Bishop of Portsmouth⁴⁷ spoke of their uncertainty as to whether it was desirable to register their positions on university councils. The Rt Hon Lord Wakeham agreed that "there should be some consistency. There is no reason for not achieving it and it would be an advantage." ⁴⁸

4.31 The force of the call for consistency does not lie in a preference for bureaucratic tidiness. Its primary purpose is to ensure similar application of the rules by all members of the House and thereby to safeguard the reputation of the House. Witnesses were largely of the view that the reputation of the House was high. As we have asserted from the beginning of our enquiry, there has been no evidence of misconduct in the House of Lords. There were however some references made by witnesses to inadvertent slips or omissions in the past, particularly in the matter of declaration.⁴⁹ In a situation where an inadvertent mistake can arise from a lack of clarity in the guidance, it makes sense, as the Rt Hon Baroness Jay of Paddington put it, "to get a more transparent and more precise system ... to enable people as individuals to feel more comfortable with their own situation and therefore not [to be] remotely exposed to any potential criticism that might arise." ⁵⁰

Public confidence

4.32 The notion of twin audiences - externally the public and internally the members - for a code of conduct was foreshadowed by the introduction in the Griffiths Report of the formula concerning voluntary registration which reads: "any other particulars which members of the House wish to register relating to matters which they consider may affect the public perception of the way in which they discharge their parliamentary duties". ⁵¹

4.33 It may be that the rules for disclosing interests have tended to become, in some members' minds, more a matter of internal perception and regulation than a part of the House's relationship with the public. Witnesses often spoke of their concern to let other peers 'know where I am coming from', particularly during debates. This is obviously of great importance. It is also true, as the Rt Hon Lord Mayhew of Twysden pointed out, that with televised proceedings and increased media coverage of Lords' debates, "there is accountability to the public in the sense that they know what is going on".⁵²

4.35 We suggest that a code of conduct provides just such a mechanism whereby those outside an institution - the wider public and the media - can judge how standards are met. The resolutions adopted by the House following the Griffiths Report constitute a form of code of conduct. They are available for public scrutiny inasmuch as the relevant paragraphs of the Companion⁵⁶ are on the House of Lords website and available in printed form. However, it would require quite detailed knowledge of procedure in the House of Lords to be able to find such paragraphs and recognise them for what they are.

4.36 As explained in Chapter 2, most public institutions have found it useful to make their Code of Conduct wide-ranging in its terms and accessible to the public by publishing a simple outline. The objective is to define principles and minimum standards, without becoming over-prescriptive. As Lord Simon put it:

I am in favour of codes of conduct that define territory but are not bureaucratic ... A code of conduct should give you principles by which you should operate, minimum standards you would like to see applied, but ... certainly a prescriptive document is not what is required.⁵⁷

The House of Commons Code of Conduct

4.37 Reference was made throughout the enquiry to the House of Commons Code of Conduct.⁵⁸ As noted in Chapter 2, this document, which is just over two pages long, incorporates the Seven Principles of Public Life and includes other aspects of conduct such as the ban on paid advocacy and compliance with the requirement to register interests. We reproduce the Code in Appendix E.

4.38 The Code is published with a Guide to the Rules which runs to 73 paragraphs. The operation of the rules is scrutinised by an Officer of the House, the Parliamentary Standards Commissioner, who reports to the House's Standards and Privileges Committee. The creation of the post of Parliamentary Standards Commissioner was one of the recommendations of our First Report. There has been a considerable increase in the Commissioner's workload over the past five years.

4.39 It is not the purpose of this report to review the operation of the Commons' conduct rules. We touched on aspects of this in Reinforcing Standards⁵⁹ and made several recommendations, some of which have been accepted by the Standards and Privileges Committee. Some of the evidence we received in the course of this enquiry did however suggest concerns about the volume and nature of the allegations that were being reported to the Parliamentary Commissioner and the Standards and Privileges Committee. The Chairman of that committee, the Rt Hon Robert Sheldon MP, himself told us "[it] is a very complicated code. Our task is to try to simplify it". He went on to speak of his concerns about "the tit-for-tat situation - people are now looking for ways of tripping up a member from the other side of the House". ⁶⁰

4.40 He did, however, emphatically reiterate the important function of the Register (and thereby the Code). In answer to a question whether the Register existed for the benefit of the Members, the wider public, the media or all three, he said:

The public, undoubtedly, in my view, without question. It is the perception of high standards in Parliament. When I came in to Parliament ... people trusted each other ... people no longer have that sort of trust. The members themselves still have very high standards but that is not how it is perceived by the public and my task was to improve that perception. ⁶¹

4.41 This goes to the heart of the matter. Regrettable though the reduction in trust in public office holders may be, it is a common factor throughout public institutions and it is a perception that needs to be addressed. Although we accept the view of many of our witnesses that the public reputation of the Lords is high, we were persuaded by the view of those who urged that the same principles should apply to the Lords as to the Commons because members of both Houses are parliamentarians:

Lord Blake: "I have a clear view that the two Houses should be treated in the same way as regards Standards of Conduct. Differentiation would be incomprehensible to the public and impossible to defend". ⁶²

The Rt Hon Lord Richard: "I think that people are entitled to have similar standards, objectivity and transparency from each House, because the obligation to be open arises from the fact that you are a legislative chamber and not from anything else". ⁶³

Baroness Jay: "It is the first principles that we feel are applicable and should be applied to both Houses of Parliament". ⁶⁴

Member of the public: "I think it not only appropriate but essential that the rules regarding conduct in the House of Commons should apply similarly to the House of Lords. Moreover they should be seen to do so as honesty and transparency in government is highly esteemed". ⁶⁵

4.42 We revert to the House of Lords' 1974 Sub-Committee report, quoted in paragraph 4.3 above, which spoke of both Houses "[pursuing] the common aim of honest, wholesome government in which people can trust". ⁶⁶ This, in our view, remains the key objective. Tere is no requirement on either House to achieve the objective by the same mechanism: what is required is that the same principles of conduct should be discernible by the public. We believe this would be best achieved by the House adopting a short Code of Conduct as recommended below. We go on in Chapter 5 to consider how the code might be applied in a way appropriate to the traditions and standing of the House of Lords.

 

R1.	The House of Lords should adopt a short Code of Conduct.

¹ Mr Poulson was convicted on 11 February 1974. A full account of the Poulson Affair is given in the Report of the Royal Commission on Standards of Conduct in Public Life (the Salmon Report), Cm 6524 (July 1976), chap 2.

² Report of the Select Committee on Procedure of the House Sub-Committee on Registration of Interests (1974), para 8. The report is unpublished (see para 4.8 below).

³ Ibid., para 7.

⁴ Ibid., para 25.

⁵ Ibid., para 25.

⁶ Ibid., para 26.

⁷ Ibid., para 28(5).

⁸ Ibid., para 28(6).

⁹ Ibid., para 28(3).

¹⁰ Ibid., para 41(xii) (emphasis added).

¹¹ The Griffiths Report, para 8. The 1974 Sub-Committee agreed to leave further consideration of the Report "until after it was known how the House of Commons were to deal with the problem". It agreed that no reference to the Report should be made in the Procedure Committee's Report to the House.

¹² Second Report from the Select Committee on Procedure of the House, HL Paper 50 (1989-90), para 3. The incidents in question concerned the adequacy of declarations of interests during debates (Hansard (HL) 3 April 1989 cols. 964 and 972, 2 May 1989 cols. 58 and 61, 11 October 1989 cols. 403 - 406).

¹³ Ibid.

¹⁴ 10 May 1990.

¹⁵ See para 1.1.

¹⁶ Letter from Lord Nolan to Lord Griffiths dated 13 February 1995, and issued with a press notice dated 17 February 1995.

¹⁷ First Report.

¹⁸ The Griffiths Report was published on 5 July 1995.

¹⁹ Ibid., para 60.

²⁰ Hansard (HL) 1 November 1995, cols. 1428 to 1488.

²¹ Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, 18th edition (October 2000), paras 4.60 - 4.71.

²² The chairman of the Committee for Privileges is the Rt Hon Lord Griffiths. The chairman of the Sub-Committee is the Rt Hon Lord Nolan.

²³ Written evidence of Michael Davies, Clerk of the Parliaments (19/75).

²⁴ Day 2 (am).

²⁵ Day 2 (pm).

²⁶ Day 5 (am).

²⁷ Oral evidence from Lord Griffiths (Day 2 (pm) ). The Clerk to the Parliaments provided some statistics showing access sought to the internet version of the Register (see his written evidence). For technical reasons common to all websites, it is difficult to make any inferences from these statistics.

²⁸ Day 6 (pm).

²⁹ Written evidence (19/19).

³⁰ Day 6 (pm).

³¹ Ibid.

³² Reinforcing Standards para 2.13. Cf. Year 2000 Corruption Perceptions Index, Transparency International, 21 September 2000.

³³ Ibid. para 2.6.

³⁴ Nine were received.

³⁵ Written evidence of Graham Wood (19/9).

³⁶ Written evidence of E J Armstrong (19/93).

³⁷ Day 5 (pm)

³⁸ For example, Lord Wakeham (Day 4).

³⁹ Day 1 (am).

⁴⁰ Day 6 (am).

⁴¹ Day 4.

⁴² See footnote 21 to this Chapter.

⁴³ Day 6 (pm).

⁴⁴ Hansard (HL) 22 November 1994, col 175.

⁴⁵ Day 3.

⁴⁶ Day 4.

⁴⁷ Day 6 (pm).

⁴⁸ Day 4.

⁴⁹ For example, Baroness Young of Old Scone (Day 6 (am) ) and Earl Ferrers (Day 6 (pm) ). As explained in para 4.9 above, there were also some incidents in 1989.

⁵⁰ Day 6 (pm).

⁵¹ The Griffiths Report, para 60(4) (emphasis added).

⁵² Day 5 (am).

⁵³ Day 5 (am).

⁵⁴ Day 6 (pm).

⁵⁵ Day 1 (pm)

⁵⁶ See footnote 21 to this chapter.

⁵⁷ Day 6 (pm).

⁵⁸ The Code of Conduct together with the Guide to the Rules relating to the Conduct of Members, House of Commons, 1997

⁵⁹ Reinforcing Standards, chap 3.

⁶⁰ Day 6 (am).

We welcome your comments on this site. Prepared 16 November 2000