Mon 29 November 2021

Former House of Commons clerk Eliot Wilson looks at the implications of the Owen Paterson affair on probity in public life

The House of Commons has traditionally been jealous of its privileges and insisted that Members of Parliament must be self-regulating. Although there has been a Parliamentary Commissioner for Standards since 1995, they have reported to a committee of the House, which in turn has made recommendations on MPs’ conduct which the House has then voted on.

The case of Owen Paterson has – somewhat unexpectedly – changed all that.

The Conservative MP for North Shropshire was investigated by the commissioner and found guilty of breaching the prohibition on paid advocacy; indeed, Kathryn Stone concluded that “no previous case of paid advocacy has seen so many breaches or such a clear pattern of behaviour in failing to separate private and public interests”. Her damning conclusions were accepted unanimously by the Committee on Standards, which recommended that Paterson be suspended from the House for 30 days.

The Government then declared that the entire system of investigation and judgement was flawed. Yesterday, it whipped its MPs to vote for an amendment tabled by Dame Andrea Leadsom (a former leader of the House), suspending Paterson’s punishment and creating an ad hoc select committee to revise the way in which MPs are regulated.

The amendment was passed by the narrow margin of 18 votes, and 13 Conservative MPs defied the three-line whip and opposed it.

A blind man can see that this looks bad. The Government’s sudden intolerance of the system of regulation by the Committee on Standards seems to have been provoked by Paterson’s harsh punishment – harsh, but then his offences were described as “egregious” and he is unrepentant.

In short, the Conservative Party seems to be setting aside the system in order to save one of its own. Jacob Rees-Mogg, Leader of the House of Commons, assured MPs that the Government would be doing the same if Paterson were a Labour MP – a protestation many found unconvincing.

The Government has done the wrong thing. Anyone who has looked at the system for regulating MPs’ conduct over the past 15 years and concluded that its main failing is that it denies “natural justice” to MPs is simply not paying attention. Those who have suffered harassment and bullying at the hands of elected MPs will have watched yesterday open-mouthed in disbelief at the self-pity and partiality of MPs supporting the changes.

But the Government has also done the wrong thing at the wrong time. If it was really so dissatisfied with the existing system of the Parliamentary Commissioner and the Committee on Standards, then, as Sir Peter Bottomley MP, the Father of the House, argued, reform should have been undertaken completely separately to the consideration of Paterson’s case. That, at least, would have seemed impartial. This looks like special pleading on behalf of a former Cabinet minister and that is unacceptable.

It can also be argued that this is a very ‘unconservative’ thing to have done.

Two of the arguments being advanced by the Government were that the current system lacked a right of appeal, and that the way in which Paterson had been judged would not be tolerated in “any other workplace”. But that is not how a traditionalist views Parliament. MPs are not ’employees’ of the House and the Commons is not a normal workplace. They are elected as public representatives and sit collectively as a body, each responsible in one direction to the voters who sent them there and in the other to the sovereign to whom they must swear or affirm allegiance before they can take their seats (this is one reason that Sinn Féin MPs will not sit in the Commons).

It is not always a popular view, but Parliament is ‘special’. It is, as Rees-Mogg would like to argue, sui generis. MPs are not subject to normal workplace conduct rules enforced by a HR department – the Code of Conduct which they must follow is enforced, ultimately, by the Committee on Standards and then by their peers, the whole House. That there is no ‘appeal’ from this is because the House is a sovereign body.

Constitutionalists will be very familiar with Article 9 of the 1689 Bill of Rights. This essentially codifies parliamentary privilege and says that the legislature cannot be subject to the jurisdiction of any court. This gives MPs enormous freedom – their privilege really is a privilege – and protects them to allow the necessary business of Parliament to go ahead unthreatened. But it does mean that no court can supervise what goes on at Westminster, and so there is no appeal from the judgement of the House on matters of conduct.

A ‘self-regulating House’ was the venerable institution which traditionalists invoked in the 1990s to fight their rearguard action against the creation of the office of the Commissioner for Standards and the system of regulation of conduct. Now, in some weird closing of the circle, it is being used as a reason why the system is unsustainable and must be scrapped. Truly, as Alice remarked, the question is whether you can make words mean so many different things.

The Government has done a bad thing in a bad way and as a result looks bad. The headlines after yesterday’s proceedings are harsh but hard to dispute. It seems that the existing system of policing conduct has been suspended to save a single backbencher from punishment, with the added bonus of watering-down scrutiny in the future.

I had believed that the reputation of Parliament was at an all-time low. The Government, perhaps without realising the effect of its actions, has now found new depths. This is dangerous, self-serving, unnecessary and tin-eared. Perhaps the coming days will give time for urgent reflection – because this isn’t over.

Eliot Wilson is co-founder of the Pivot Point Group


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