Speech in the House of Lords Conduct Committee: Code of Conduct Review – 8th of October

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Robert Skidelsky
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“My Lords, in taking part in this debate, I must declare an interest: recently, I was a victim of the committee chaired by the noble Baroness, Lady Manningham-Buller. Although this is not the kind of interest a Member is normally obliged to declare, I believe that my personal experience has given me a certain insight into the way the system works, which may be of public interest.

I welcome the committee’s aim to shorten and clarify the code and guide wherever possible—they require drastic pruning—but, because their expansion is part of a more general demand for increased transparency in public life, it is very hard to know how and where to stand out against the tide; one then sort of looks rather like King Canute. That is a problem the committee must face.

When I was made a Peer in 1991, there was no register of interests, Code of Conduct or daily attendance allowance. New Peers were given a brochure telling them not to be vexatious in speaking—I have tried to stick to that faithfully—but that was about it. The custom, which continues to this day, was that Lords with a pecuniary interest in the subject under discussion should declare an interest.

In 1996, that was extended to non-pecuniary interests. I have done a bit of research on this. Had I taken part in a debate on crossbows in 1996, I might have had to declare my interest as chairman of the crossbow association, whether I was paid or not. In fact, this example is not entirely fanciful because there was a debate on crossbows in the early 1990s; I did not take part in it, but that was the kind of interest you were supposed to declare. Unlike MPs, Lords received no pay. They could claim actual expenses incurred for attending Parliament.

This relaxed system started to unravel in the 1990s. A register was created in 1996 to “restore confidence” in parliamentary institutions even though it was MPs, not Peers, who were involved in the “cash for questions” scandal. That register was not particularly intrusive: Lords were required to register their interests under two compulsory registrable categories, one covering paid consultations for providing parliamentary services and the second covering any financial interest in businesses involved in parliamentary lobbying. Registration under category 3, which included all other interests, was voluntary. About 10 Lords registered their interests under the first two compulsory categories. Some 308 Lords registered interests under the third, voluntary, discretionary category, while 208 Peers had failed to register any interest whatever. In an attitude of lordly disdain, Lord Jenkins of Hillhead registered his discretionary interests as:

“Chancellor of the University of Oxford (unpaid) … President of the Royal Society of Literature (unpaid) … Writer of books and articles … Occasional lecturer … mostly but not invariably unpaid”.

Then came the Williams report in 2000, which really started the regulatory escalator. There was now to be a short Code of Conduct built on seven principles, which, by virtue of repeated incantation, have come to be regarded as sacred: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. No one can be against these virtues, but they do not do any work in the code. They are vestiges of a pre-code attitude to behaviour that has somehow survived into this world of contractual obligation.

More importantly, the number of registrable interests shot up from two to 10. In effect, discretion as to what or what not to register was abolished. Peers who aspired to be legislators could no longer decline to register their interests. As a direct result of the new requirement, eminent hereditary Peers such as Lord Cranborne resigned their membership of the House.

The next flurry of reform followed the parliamentary expenses and “cash for amendments” scandals of 2009, which involved both Peers and MPs. As a result, the expenses claim system was turned into one of attendance allowances and the Code of Conduct was expanded. There was a new independent commissioner for standards and an explicit sanctions regime was introduced, allowing for expulsion or suspension.

That was not the end of it. The 2010 code was extended to Members’ staff on 1 April 2019, while a new section covering bullying, harassment and sexual misconduct was added to the code in April 2021. At the end of this process, noble Lords could no longer be trusted on their honour to behave decently in matters, either monetary or sexual affairs; they must sign a contract promising to do so.

As has rightly been said, there has been a huge mission creep since the 1990s. Some detail of that makes it a bit more vivid. The register, which started with 59 pages, two registrable categories and one discretionary category in 1996, now has 10 mandatory categories and 414 pages. This partly reflects an increase in numbers, of course, but, much more importantly, it reflects the incentive to register an interest in almost anything for fear of being sanctioned for missing something. Among the monumental collections of interests that it has been my privilege to look at, one Peer has listed no fewer than 200 relevant interests—I counted. It is impossible to say whether he was being boastful or merely prudent.

The code and guide have expanded from 137 paragraphs and 27 pages in 2009 to 262 paragraphs—including appendices—and 57 pages in 2023. The enforcement procedure alone now comes to 79 paragraphs and 15 pages. Although the ritual appeal to Lords’ honour continues throughout all this, honour has been completely devalued. In fact, in an extraordinary passage, the Committee on Privileges says that

“any definition of ‘personal honour’ … would quickly become out-moded”—

that is, personal honour is simply what is expected today: a contractual promise to do what present opinion decrees to be honourable. So much for Edmund Burke. But the phrase should be dropped, perhaps because it has stopped having any relevance to the code. In the same period, from 2010 to today, the daily attendance allowance has dropped by 50% in real terms—that is, the cost of membership of the House has risen relative to the rewards for membership.

I come to the last set of things I want to say. How do we explain this regulatory explosion? What, if anything, can be done to stop it or even reverse it, as a number of noble Lords have suggested? I suggest that one source of the explosion arises from a defect of language. “Interest” is always defined in terms of private benefit or profit. This sets up an automatic conflict or potential conflict between interest and duty. The older idea that it is in the legislator’s interest to secure good government has gone and interest has become something completely apart from duty. In that confusion lies a lot of what has gone wrong in the expansion of the code.

The second source of regulatory creep is the importance given in your Lordships’ reports to public perception. This has been mentioned a number of times. Again and again, it is stated not that noble Lords should act honourably but that they should be perceived to act honourably. Perceived by whom? Typical is this from the current code:

“The key consideration in determining relevance … is that the interest might be thought by a reasonable member of the public to influence the way in which a member of the House … discharges his or her parliamentary duties”.

The code says that a reasonable member of the public is taken to mean “an impartial and well informed person, who judges all the relevant facts in an objective manner”.

Where is this individual to be found? Maybe only on the judicial Bench.

Beneath the stately prose, one can detect a succession of capitulations to two pressures: on the one hand to journalists, who make their living by snooping and entrapment; and on the other to lawyers, who aim to construct cast-iron defences against any possible allegation of skulduggery. These objects, which I completely understand, have only a remote connection with securing public accountability for Members’ actions. Again, the word “public” needs clarification.

I would like the committee, first, to go back to the original purpose of no paid advocacy and ask whether the vast regulatory superstructure now in place is needed to achieve it. How many registrable interests are relevant to the issue of corruption? Is it really necessary for Peers to record all their journalistic outpourings? Some are more prolific than others in this respect, but what relevance does that have to their parliamentary duties? Secondly, I suggest the mechanical rule that any addition to the register should be matched  by a subtraction. Thirdly, I would remove the demeaning requirement that Peers attend behavioural seminars. You may need these for children or possibly university students, but not for adults who are determined mature enough to be legislators, as the noble Baroness, Lady Fox, touched on. Either make them real and show up their absurdity, or abolish them. Finally, any Member of the House sanctioned by the Conduct Committee should have a right to test the opinion of the House. We should not be condemned in camera. I beg the committee to set its face against using hammers to crack a small collection of nuts.”