Motion to Agree
My Lords, in moving that the eighth report from the Committee for Privileges and Conduct be agreed, I will speak also to the third Motion in my name on the Order Paper amending the Code of Conduct. The eighth report covers three areas. First, it proposes minor changes to the Code of Conduct and the guide to the code to provide greater clarity for Members about what needs to be declared when speaking in the House. Secondly, it proposes an amendment to the guide to provide that when the commissioner upholds a complaint alleging non-declaration of a relevant interest, she should examine whether there were other possible instances of non-declaration of that interest in the four years preceding the complaint. Finally, it recommends that Members should register in the Register of Lords’ Interests if they are on the central Register of People with Significant Control and should list the companies or organisations in question.
My Lords, I do not want to detain the House. First, I very much welcome this eighth report, but reading it made my brain hurt a little, and it is still hurting. The Senior Deputy Speaker said that there are minor changes to the code. Paragraph 7 of the report focuses on the word “might” in relation to where a declaration is required. Paragraph 11 of the Code of Conduct states:
“The test of relevant interest is whether the interest might be thought by a reasonable member of the public to influence the way in which a Member of the House of Lords discharges his or her parliamentary duties”.
I have always thought that “might” was a bit vague. Paragraph 7 of the report states:
“‘Might’ implies speculation as to whether an interest is relevant. ‘Would’ implies more certainty”.
I thought: excellent—that is absolutely right. But what is proposed is that the test of a relevant interest is therefore not whether a Member’s actions in Parliament will be influenced by the interest but whether a reasonable member of the public might think that this would be the case. In other words, one “might” has been removed but another remains. I ask the Senior Deputy Speaker to explain why, if the committee felt that “might” implies speculation and “would” implies more certainty, we did not get rid of all the “mights” and replace them with “woulds”.
All I can say is that the challenge of the mighty noble Lord, Lord Forsyth, is too much for me here today. This was undertaken by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, with the intention to make the code more consistent. In moving that, the committee accepted it at the time. I invite the House to agree the Motion, mindful of the comments of the noble Lord, Lord Forsyth. I will go back and ensure that his comments are taken on board when we finally produce the new code.
I had the honour, as has already been mentioned, to chair the Sub-Committee on Conduct of the committee whose report this is. Part of our function is to keep the code under review. Declaration of interests is always a tricky area, but we were particularly concerned with the oddity of paragraphs 11 and 12 as they currently stand.
The House will know that under paragraph 10(b), set out in paragraph 1 of the report, there is an obligation to declare relevant interests when speaking in the House, and so forth. Paragraph 11 of the code, set out in paragraph 4 of this report, is the governing provision. It says:
“The test of relevant interest is whether the interest might be thought by a reasonable member of the public to influence the way in which a Member … discharges his … parliamentary duties”.
On the face of it, that has stood for some years and seems to me a perfectly sensible provision.
Paragraph 12 of the code, set out in paragraph 5 of this report, by way of elaboration, exegesis or explanation—call it what one will—seeks to assist in the interpretation or understanding of the previous paragraph. It states:
“The test of relevant interest is therefore not whether a Member’s actions in Parliament will be influenced by the interest, but whether a reasonable member of the public might think that this might be the case”.
What troubled us, and still troubles me is that it is a rather curious formulation which, far from assisting in understanding paragraph 11 of the code, seems positively unhelpful. Paragraph 37 of the guide defines who a reasonable person is, and it is worth reading. It is very short, and states:
“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”.
One has to have such an approach, and it seems a perfectly sensible definition of a reasonable person. The trouble with paragraph 12, unless we change it as this report recommends, is that once you introduce two “mights” there is uncertainty beyond good sense. The noble Lord, Lord Forsyth, would redraft paragraph 11 by substituting for the word “might” in the first line the word “would”. Think how that then reads:
“The test of relevant interest is whether the interest”—
“be thought by a reasonable member of the public to influence the way in which a member of the House … discharges his … duties”.
Surely that would weaken the obligation to a wholly unacceptable point. It raises the threshold at which you have to declare an interest, so that the only time you have to do so is if a reasonable person would think that what you are about to say is coloured by your interest. That is surely absurdly high. The governing test must remain as it is and in paragraph 12 we are just clearing things up by substituting for the second “might” the word “would”.
We need certainty as to when the obligation arises and the interest has to be declared. Surely, the whole object of this is to allay the public’s concern and allay a reasonable person’s suspicion that your interest might influence what you are going to say. That is what paragraph 11 currently provides for. You cannot sit quietly and not declare an interest merely because a reasonable person might, rather than necessarily would, think that it is going to affect what you are going to say. That would be an absurdly low test and completely out of harmony with all other public bodies, with the code in the House of Commons and the rest of it. I respectfully urge your Lordships to consider that, if you crossed out “might” and put “would” in the governing paragraph 11, this House would be brought into disrepute because it would be said, “They don’t have to declare an interest unless a reasonable person not might but would think that it would affect them”. Is not that an absurdly high test for when this obligation is brought into being?
I respectfully agree with the noble and learned Lord, Lord Brown, and perhaps refer to the point made by the noble Lord, Lord Forsyth. “Might” is less likely than “would”, but it is a realistic possibility, and it is not, with respect, speculative at all; it just means that it could happen in a realistic sense. In those circumstances, if a member of the public might take that view, surely it would be much more impressive if the obligation imposed on the Member of the House is to make a proper disclosure.
I have the responsibility of having participated in the report now put before your Lordships by the Senior Deputy Speaker. What we are proposing is as good as you can get in this area. First, the member of the public is a hypothetical individual—and the more hypothetical you may think he is when you have heard the qualifications. But the relationship between the Member of the House and a particular interest is not in any sense speculative; it is something that he or she knows they are going to have. Whether that will influence what he or she is going to say in the House of Lords is a very definite matter, so it is perfectly appropriate that “would” should be used. When you are dealing with a hypothetical man or woman—“member of the public” is the phrase used to cover that difficulty—it is purely hypothetical. To say that a member of the public would if properly qualified do this is to set it at a very high level indeed. Having due regard to the difficulty expressed by my noble friend Lord Forsyth, because the paragraph does not say “would” every time, I think that it has made the distinction in a suitable and appropriate way where it has done so.
My Lords, I am very much aware that I am speaking to a House full of reasonable people. In that regard, earlier I invited the House to agree the Motion and I shall go back and ensure a positive exchange between the noble Lord, Lord Forsyth, myself and the noble and learned Lord, Lord Brown. If the House is agreed on that, I beg to move.