House of Lords Conduct Committee: Code of Conduct Review

Lord Hope of Craighead Excerpts

Tuesday 8th October 2024 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, it is a pleasure for me to follow the noble Lord, Lord Forsyth. I wish particularly to endorse what he said about the dangers of mission creep, particularly the risk that complaints made about things that we say in the House might be taken forward as a ground for some criticism under the guide.

I join the noble Lord in welcoming and congratulating the noble Baroness, Lady Manningham-Buller, on securing this debate and on the way she opened it, as it were for general discussion rather than anything else so that we can really put across ideas and they can be taken on board by the committee.

I am afraid that, as a lawyer, I have fallen into the trap of looking into the words of the code to see whether I can find things wrong with it. I have picked up three questions which are in the call for evidence. The first is whether there are

“any elements of the Code and Guide”

which are “unclear or confusing”, the second is whether any

“provisions of the Code or Guide”

are “unnecessary”, and the third is how

“the presentation of the Code and Guide”

could be

“improved, to make it more accessible and user-friendly”.

I will take the first two questions together, because my points about them relate to a particular issue, which is the way the guide deals with the registration of interests by arbitrators. I have to declare an interest here because I sometimes engage in international arbitration. I am engaged in one just now, which is listed in the register, as I was nominated to act as one of three arbitrators by a foreign state; that is declared in the register, and I have no complaint about that.

The introduction of this requirement into the code had a rather uncomfortable birth. It was suggested that it was needed for reasons of national security. It is not unusual for those who engage in arbitration to be nominated by the Government of a foreign state or an organisation controlled by a foreign state. However, the then chairman of the committee, the noble and learned Lord, Lord Mance, had to recuse himself because he was engaged in many of these arbitrations and felt he should not take part in the debate. The discussion was then chaired by Lord Brown of Eaton-under-Heywood, the only remaining lawyer, who found himself in a minority of one when the matter was debated.

The matter then came before the House for approval. The noble Baroness, Lady Donaghy, is smiling at me because, like me, she remembers very well the nature of that debate. It was—I think I can put it this way—rather highly charged. Those noble Lords who opposed the proposal, which did not include myself, were all arbitrator lawyers, and they did not win the sympathy of the House. We now find two provisions in the guide, paragraphs 56 and 63, which deal with the issue.

The first point about this is that it is unnecessary for the point to be dealt with in two separate paragraphs. The two paragraphs I mentioned say exactly the same thing, and one of them is plainly in the wrong place because it is under chapter 1, which deals with directorships. Arbitrators are not directors at all of the party by whom they are nominated. They are acting as independent adjudicators on the issue before them. It should not be in paragraph 56, and if it is taken out nobody will miss it because it is repeated in exactly the same terms in paragraph 63. That is the first point. It is simply a provision which is unnecessary and should be taken out.

Paragraph 63 itself is a bit confusing because it deals with the problem of arbitrators by saying that:

“Members providing legal and arbitral services need to register the identity of registrable clients … under this category only once (a) the identity of the client or party has entered the public domain or (b) they have been paid for the work (wholly or in part), whichever comes first”.


The problem is this that point (a) seems to suggest that registration is required only where the fact that the arbitration is taking place has entered the public domain.

There is something to be said for that because, on the whole, arbitrations are meant to be private affairs and there are some cases where it is in the interests of the state that the fact that the arbitration is proceeding should not be known by the public. I had some experience of this when I advised the governor of one of our overseas territories. I declared my interest to the register, but I said that it would be unfortunate if the name of the governor or the identity of the territory were identified because there was a considerable political debate and she did not want it known that she had applied to London for advice. Very wisely, the register simply said that I had advised the governor of an overseas territory, the details of which could be provided on request. I thought that was a very sensible way of getting around my problem.

However, it comes back to the point that there are cases where there is a reason for something not entering the public domain. The problem is that the second branch of this clause states that you have to declare when you are paid, and that could happen before the public knows about the arbitration or in a case where arbitration is meant to be confidential. I am not suggesting a solution to this, but I suggest that the committee might like to look more carefully at what exactly it wants to be declared by arbitrators. I am sure we will follow the guidance. At the moment, it works reasonably well for me, and I am not complaining, but there is a lack of clarity that needs to be addressed.

On the third point—presentation—I hope I am not treading on any toes when I say that our code does not stand up very well in comparison with the House of Commons code of conduct. I am not talking about content, and I endorse what the noble Lord, Lord Forsyth, said about the differences between our two Houses. That is not my point. It is a question of presentation. Its code is much better presented than ours.

Perhaps I can put forward some basic requirements. First, the content should be divided into distinct sections under clearly labelled headings. Secondly, the contents of each section should be set out paragraph by paragraph, each of which is designed to deal with one topic only. These paragraphs should be kept short, ideally no more than about six lines, so that the point that they are making can be easily and quickly understood. People tend to speed-read when they look at documents of this kind, and they need to be able to grasp the point quickly. If a paragraph runs beyond about six lines, they will miss the point, so there needs to be brevity and clarity. It is all about presentation, and I do not think our code meets that test as well as it should. It is partly because things have been added, but as it is there is a bit of confusion.

The purpose of our code is set out in paragraph 3 under the heading “Introduction”. It would be better if it said “Purpose”. Paragraph 3 is divided into sub-paragraphs (a) and (b) which, quite correctly, set out propositions that are clear and simple, but the clarity of that original presentation is undermined—indeed, cluttered—by adding two sentences to sub-paragraph (a) which deal with the scope of the code, not its purpose. They are important sentences. The first states that

“the Code does not extend to members’ performance of duties unrelated to parliamentary proceedings, or to their private lives”,

but that deals not with the object of the code but with its scope. It should be set out in separate paragraphs, separately presented. I would keep sub-paragraphs (a) and (b) in paragraph 3, but the middle sentences should be set out in two separate paragraphs after that.

Paragraph 7 is another paragraph that needs to be broken into separate paragraphs for clarity. It talks about three different things. First, it talks about the application of the code to the Lord Speaker and the Senior Deputy Speaker, then it deals with its application to candidates for those offices, and then to the spouses or partners of officeholders. All that is bunched into a single paragraph. It would be much easier to follow if it was divided into three paragraphs, one by one.

Another one is paragraph 28, which is 17 lines long and contains six sentences. It is far too long, and it should be broken down into separate paragraphs. Paragraph 12 sets out the seven principles identified by the Committee on Standards in Public Life. That, of course, is good and helpful, but it also states that it should

“act as a guide to members in considering the requirement”

in paragraph 10

“to act always on their personal honour”.

I understand the intention to say a bit about what that time-honoured phrase means, but it is not helpful to then say, “Have a look at the standards in public life”, because not all of them relate to that. The first two are related—for example, integrity—but then it goes on to other things. There are a whole lot of things to go through.

This is my point about simplicity; if you are going to make a point, it should be pure and simple. A better way of doing it would be to refer to the passage in the guide which sets out, in paragraph 7, what the committee on standards suggested we should understand by that phrase, rather than going on to the principles. We should keep the principles as they are, but not make that cross-reference. If a reference is needed, it should be to refer to the guide.

Finally, I will make a brief comment on the question asked in the call for evidence:

“should there be a rule covering behaviour … that causes significant reputational damage to the House as a whole?”

As the noble Lord, Lord Forsyth, suggested, we move into quite dangerous territory if we try to make provision about that. The question reminds me, and I am sure many other noble Lords, of the case of Lord Sewel, whose conduct, as reported in the Sun, was clearly of that character. The problem was that the conduct took place entirely in private. As he pointed out, the code relates only to standards of conduct expected of Members in the discharge of their parliamentary duties.

It was a very anxious period. As convenor, I know well how difficult it was for our Leader, the noble Baroness, Lady Stowell, to deal with. In the end, fortunately Lord Sewel recognised that his conduct was not compatible with membership of the House and that he could serve the House’s interests best by leaving it. That solved the immediate problem, but the point remains that the code applies only to a Member’s parliamentary duties and does not extend to what they do in their private lives, however damaging that may be.

Nothing was done by altering the code at that stage, but it would have been very difficult to extend it to private lives. I am not suggesting that we should do that. However, there is a question we might like to think about. I suggest that to broaden the code to cover private lives, or professional lives outside the House, by sets of rules would be unacceptable. However, it might be sensible to contain a note of advice, advising Members that they should at all times avoid engaging in conduct likely to cause significant reputational damage to the House. It would be advice, not a rule, but it would serve as a reminder of the inescapable fact that Members need to have regard to the reputation of the House, whatever they do and wherever they are.