Proper rules for peers
Proposals submitted to the House of Lords Sub-committee on Members Conduct
It would be helpful to the general public, and perhaps also to members of the House, to consolidate the Code and the Guide into a single document.
The Code
Paragraph 1, add at end: “Membership of the House is, above all, a summons by the sovereign to the service of the state. Members are unelected and once appointed may sit in the House for life, a provision which is almost unique in the world’s legislatures. The public are entitled to expect that members should adopt the highest standards of personal conduct, both inside and outside the House.”
Paragraph 2: omit final sentence, which adds nothing to the Code and which is not necessarily true. Some members of the House have had long membership of the other place and may have little relevant experience outside Parliament.
Paragraph 3a: omit all after “them” in line 2 and replace with “ the Code does not extend to conduct outside the House except as provided in paragraphs 8, 9, 16 and 17.”
Paragraph 3b: omit all after “in” in line 2 and replace with “the House.”
New text 3. The purpose of this Code of Conduct is:
(a) to provide guidance for members of the House of Lords on the standards of conduct expected of them; The Code does not extend to conduct outside the House except as provided in paragraphs 8, 9, 16 and 17.
(b) to provide the openness and accountability necessary to reinforce public confidence in the House.
Paragraph 8b: replace with “should act always in accordance with the Principles of Public Life, as currently defined by the Committee on Standards in Public Life.”
Paragraph 8c: omit “any financial inducement” since incentives and rewards may be non-financial.
Paragraph 8d: It might be simpler and clearer to prohibit members from taking any action within the House as the agent of any outside party, whether paid or not.
New text: 8. Members of the House:
(a) must comply with the Code of Conduct;
(b) should act always in accordance with the Principles of Public Life, as currently defined by the Committee on Standards in Public Life;
(c) must never accept or agree to accept any financial inducement as any incentive or reward for exercising parliamentary influence;
I think that it would be an excellent idea to add a new sub-paragraph to paragraph 8 as follows:
(x) must never attempt to use their status to secure any kind of personal advantage or treatment by means which would not be available to a member of the general public. The House will view with particular severity any attempt by members to use any such means in the pursuit of a complaint or a grievance.
In adopting this the House would set an excellent example to other people in public life, especially those who use the sentences “Do you know who I am?” or “I know your editor.”
Paragraph 9: Make the Principles directly enforceable on members and omit reference to personal honour. Omit all after “Public Life” in line 2 and replace with: “Members may face investigation of allegations of conduct inside or outside the House which might be thought by a reasonable person to be in breach of the Principles, and may be sanctioned if the allegations are upheld. These Principles will also be taken into consideration when any allegation of breaches of the provisions in other sections of the Code [or the Guide to the Code] is under consideration.”
Paragraph 16: what happens to peers sentenced to over one year’s imprisonment?
Paragraph 17: add references to disqualification as company director, and disqualification or suspension from the exercise of any profession, trade or vocation. Why should people who cannot run a company be allowed to run the country? Peers are expected to represent the highest standards of their professions – those who fall short should face the possibility of sanctions.
Paragraph 23: insert after “Conduct” in line 2 “or any officer or servant of the House” At end insert: “”No member should approach any complainant directly or attempt to exercise influence over any complainant.”
New text: 23. No member shall lobby a member of the Committee for Privileges and Conduct or the Sub-Committee on Lords’ Conduct or any officer or servant of the House in a manner calculated or intended to influence their consideration of a complaint of a breach of this Code. No member should approach any complainant directly or attempt to exercise influence over any complainant.
Paragraph 25: add after “regard” in line 3 “provided that he or she has given complete and accurate relevant information about the matter to the Registrar.”
New text: 25. A member who acts on the advice of the Registrar in determining what is a relevant interest satisfies fully the requirements of the Code of Conduct in that regard, provided that he or she has given complete and accurate relevant information about the matter to the Registrar. However, the final responsibility for deciding whether or not to participate in proceedings to which that interest is relevant rests with the member concerned.
It may be thought highly unlikely that any peer would try to nobble an Officer of the House, or threaten a complainant, but it is as well to deter such conduct by a reference in the Code, and it would bolster public confidence in the House.
For similar reasons, I would suggest that the Code introduce an in terrorem provision against members who wilfully mislead any Officer or servant of the House on any issue.
The Guide to the Code of Conduct
Some of the changes recommended above will have consequences for related provisions in the Guide. I have not attempted to track all of these.
In Paragraph 3 or elsewhere I think that it would be good to declare that the House has a bias towards disclosure, and that the Registrar will always recommend registration or declaration of a potential interest unless the member can offer convincing reasons for believing that a reasonable person would not expect it to influence his or her conduct in the House.
Omit Paragraphs 6 to 9 on personal honour: they would become otiose if the Principles of Public Life (which are much more explicit) were incorporated into the Code.
Amend or omit paragraphs 10 and 11 if the Principles became directly enforceable.
Omit Paragraphs 17 and 18: they are superrogatory and paragraph 17 almost invites members to argue that there is no distinction between the public interest and any private interest they choose to represent. “The Shropshire Pig Breeders Association has the right to be heard in the House.”
I think that paragraphs 19 to 28 need a great deal of clarification. I am not certain how to achieve this, but it might be enough to reform Paragraph 8 of the Code, as recommended above, ie a simple prohibition on peers from undertaking any action in the House at the direction of any outside body. It might also be helpful to have a general ban on lobbying by peers, with a definition of “lobbying” thus: to attempt to secure any decision on any matter by any government or regulator or public agency or international organization or any individual acting on its behalf.
On registration of interests:
I find incomprehensible the reference in paragraphs 49 and 52 to declaring “the precise source of each individual payment… confidentiality.” Simple inspection of the Register suggests that most peers also find it incomprehensible. It appears to mean that directors and employees should register all the clients of their companies or employers. But that would render paragraph 60 (my bugbear) otiose. If the House decides to retain the references to an established duty of confidentiality I think that the Guide should spell out the professions concerned. Personally, I think that this should refer only to medical, mental and spiritual professions and only in relation to actual human beings as clients, not to companies and other non-natural persons. As will be seen below, I believe that governments and Politically Exposed Persons have no right to privacy as clients.
Paragraph 60: see separate note. This serves no public interest, and allows a small group of peers the right to ignore the standards of disclosure required of the best public affairs consultants.
In any revision, the Guide should define public affairs and services. Here is an attempt based on definitions commonly in use in the industry, including its professional body, the Association of Professional Political Consultants.
“Although members may not engage in lobbying, as defined in paragraph x above, they are not prohibited from providing or assisting the provision of other public affairs advice and services. For purposes of this paragraph, this means any advice or services aimed at improving a client’s relationship with and potential influence over any government or minister or public official or regulator in any country; any international organization; any person or body seeking to influence voters in any country; or any section of the media, or general public opinion, in any country. It includes any training or education aimed at assisting any of these objectives.”
Then provide as follows: “Any member who is a director or partner in any organization providing public affairs advice and services should list all of its clients in the Register, indicating with an asterisk any clients for whom they provide any personal advice or service and any clients whom they have introduced to the organization. Any member who is an employee of such an organization should list in the Register all the clients for whom they provide any personal advice or service and any clients whom they have introduced to it.”
Category 7 I think there is a risk in asking peers to declare only visits “substantially arising out of membership of the House.” Most peers, if not all, have done something else in life, and they can always claim that they were invited in that capacity. This allows peers to withhold potentially embarrassing visits from the Register. For example, if Lord Emsworth wanted to hide his luxurious hospitality from the government of Repressia he could claim to have been invited as President of the Shropshire Pig Breeders association.
I think that peers should declare all overseas visits – or subsidies for an overseas visit – worth £500 or more if paid by the host or any third party other than his or her employer.
There is a curious anomaly that if Lord Emsworth made a speech in Repressia he would have to disclose this, and his subsidized visit, in Category 2. I see no reason for the House to favour shy, silent peers.
An identical argument applies to gifts, benefits and hospitality under Category 8 “which relates substantially to membership of the House.”
New provisions on registration of interests
I think that a new category should be established for members to declare any payment or benefit they receive from any overseas government or public agency or any Politically Exposed Person (as defined in statute) in any overseas country. The public deserve this information. Most but not all of it can be obtained laboriously from the present Register. It would be a great convenience to the public to bring this together in one place, and to allow the public quickly to discover all the peers who have a beneficial relationship with any particular overseas country.
In view of the beautiful language of the writ of summons, there is a case for arguing that peers should not have any such relationship. If they do, they should certainly disclose it.
A draft of this new category of registration follows in the Appendix.
I believe also that peers who are directors or partners in non-British businesses should declare the nationality of the business concerned. There is scope for argument over this in any case, but to me it means the country where the ultimate head office of the company is located (and/or where it is domiciled for taxation purposes.) The public should be able to discover quickly which peers work for say, Russian companies or those registered in tax havens.
For the convenience of the public, members might be asked to declare simultaneously on the Register any donations they are obliged to declare to the Electoral Commission.
Enforcement
Paragraph 110 omit last sentence and matching provision in Paragraph 114. If they have any effect, they may deter complaints from whistleblowers who are within the power of an offending peer. In the case of any reasonably serious allegation, I can see no reason why a peer should know the identity of a complainant. Even if the complainant is malicious or vindictive, the allegations he makes may be true, and if the Commissioner decides to ask questions about them, the peer should be ready to answer them.
Paragraph 121 I think there should be an obligation on peers to inform the Commissioner if they are investigated for any reason by the police or any regulatory agency in any country or by their relevant professional body. Peers should keep the Commission informed of the progress of the investigation. The Commissioner would then decide whether to initiate an inquiry herself. Regardless of her decision, I believe that the House should give itself power to act against any peer who has been sanctioned by the Electoral Commission. If a peer cannot comply with the basic rules of British democracy, he or she should lose the right to influence the law or public policy.
Appendix
Draft new category of Registration of Lords Interests
Category X: Foreign Governments and Politically Exposed Persons
Members should list under this category any financial or other valuable benefit worth £500 or more which they (or their spouses or civil partners) have received from any overseas government or a Politically Exposed Person (or his or her close family members or known close associates) in any overseas country. They should list the value of each benefit so received, its nature if non-financial (for example free or subsidized hospitality) and the source. They are not obliged to declare the reason for which the benefit was given, unless it is in connexion with public affairs advice or services (as defined in paragraph y).
Members who are directors or partners in any business which has supplied goods or services of any kind to the value of £1000 or more to an overseas government or Politically Exposed Person (or his or her close family members or known close associates) should list under this category the businesses and the customers concerned. Room for argument as to value
Members who have a personal working relationship as employees of any business with any customer who is an overseas government, or a Politically Exposed Person (or his or her close family members or known close associates) should list under this category the business and customers concerned. For sake of completeness
An overseas government includes any official or public agency appointed by national government, but not a local authority, and bodies appointed by or accountable to local authorities.
An overseas government does not include any international organization but members may be liable to declare any financial or other valuable benefit received from a senior officer of such an organization acting in a personal capacity, if he or she is a Politically Exposed Person.
A Politically Exposed Person and his or her close family members or known close associates mean anyone within the definitions used in any current legislation or regulations. A PEP would generally include any head of state or head of government, minister, senior government or ruling party official, member of a national parliament or assembly, high-ranking military officer, ambassador, or justice of the highest court in any overseas country. It would also generally include any senior official of an international organization. Doubtful cases should be referred to the Registrar. Close family members include parents, spouses and civil partners, children and their spouses or civil partners.
Definition of Politically Exposed Person
Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017
12) In this regulation— (a) S.I. 2007/2157. 42 (a) “politically exposed person” or “PEP” means an individual who is entrusted with prominent public functions, other than as a middle-ranking or more junior official; (b) “family member” of a politically exposed person includes— (i) a spouse or civil partner of the PEP; (ii) children of the PEP and the spouses or civil partners of the PEP’s children; (iii) parents of the PEP; (c) “known close associate” of a PEP means— (i) an individual known to have joint beneficial ownership of a legal entity or a legal arrangement or any other close business relations with a PEP; (ii) an individual who has sole beneficial ownership of a legal entity or a legal arrangement which is known to have been set up for the benefit of a PEP.
(13) For the purposes of paragraph (5), a reference to a business relationship with an individual includes a reference to a business relationship with a person of which the individual is a beneficial owner.
(14) For the purposes of paragraphs (9), (11) and (12)(a), individuals entrusted with prominent public functions include— (a) heads of state, heads of government, ministers and deputy or assistant ministers; (b) members of parliament or of similar legislative bodies; (c) members of the governing bodies of political parties; (d) members of supreme courts, of constitutional courts or of any judicial body the decisions of which are not subject to further appeal except in exceptional circumstances; (e) members of courts of auditors or of the boards of central banks; (f) ambassadors, charges d’affaires and high-ranking officers in the armed forces; (g) members of the administrative, management or supervisory bodies of State-owned enterprises; (h) directors, deputy directors and members of the board or equivalent function of an international organisation.
Richard Heller September 2018
