Code of Conduct for elected members and disciplinary sanctions: review.

STATES OF JERSEY

CODE OF CONDUCT FOR ELECTED MEMBERS AND DISCIPLINARY SANCTIONS: REVIEW

Presented to the States on 16th October 2009 by the Privileges and Procedures Committee

STATES GREFFE

2009   Price code: C  R.116

REPORT

Foreword

The  Privileges  and  Procedures  Committee  has  been  considering  amendments  to Standing Orders in relation to disciplinary sanctions for States members for some time and has now formulated the proposals for change that are set out in this Report.

As this issue is clearly of importance to all members the Committee has decided to circulate details of its proposals to members before the actual amendments to Standing Orders are finalised and lodged for debate. PPC welcomes any comments that States members may have on these proposals and will consider any comments received before lodging the actual amendments to Standing Orders for debate in due course. Comments can be sent to PPC c/o States Greffe or e-mailed to the Committee Clerk (a.heuston@gov.je)  and  should  be  submitted  no  later  than  Friday  13th November 2009.

Introduction

1. On 13th May 2009 the States adopted a proposition of the Deputy of St. John by 43 votes to 4 requesting the Committee to "review the Code of Conduct for Elected members of the States and the sanctions available for breaches of the Code".
2. The present PPC had already begun work on reviewing the sanctions available in  Standing  Orders  and  this  followed  work  that  had  been  begun  by  the Committee as previously constituted. Amendments to Standing Orders had been drafted but were not presented to the States prior to the dissolution of the previous  Committee  as  appropriate  legal  advice  was  sought  on  the amendments that had been prepared.
3. The proposition of the Deputy of St. John did not specifically call for the sanctions available under the Code to be strengthened as it simply requested PPC to review the matter. There were nevertheless comments made during the debate that the available sanctions were not sufficient for serious breaches of discipline. The Deputy of St. John expressed the view that, "in putting any Code of Conduct together [he] would expect a monetary sanction available as well  as  a  period  of  suspension  from  office,  which  would  give  a  Member considerable  thought  as  to  the  actions  he  or  she  takes  against  fellow Members". Senator F.E. Cohen said: "in the current circumstances, proper sanctions  are  required,"  and  Senator  B.E.  Shenton  expressed  a  need  for "higher  standards".  During  the  debate,  the  Chairman  of  PPC  made  the following statement: "the PPC does not necessarily feel that the Code is defective but it is not entirely effective and that is surely due to the lack of sanctions  and  this  Assembly  can  rest  assured  that  when  PPC  brings  its proposals they will have been informed by the usual work that our officers do in investigating what happens in other jurisdictions, in other parliaments and they can rest assured that we hope to bring forward measured proposals; proposals which will reinforce the integrity which States Members must act with and not to challenge their democratic role."

Code of Conduct

4. The present Code of Conduct which is found in Schedule 3 to the Standing Orders has not been amended since the Standing Orders came into force in December 2005.
5. PPC does not consider that the Code itself is defective and does not believe that  any  significant  amendments  are  necessary  although  the  Committee believes it may be worthwhile to specify in the Code that members must not disclose publicly the contents of any debate held in camera. Although the Committee would have hoped that this was very much implicit when a debate is held in camera an investigation earlier this year showed that there was not specific provision in the Code or Standing Orders that required members to keep the details of in camera debates in confidence.
6. Other than this minor change the Committee believes that the Code itself is adequate. It is based very largely on similar Codes in many other jurisdictions and the present Committee and its predecessors have found no evidence that

the Code does not cover all necessary matters. The difficulties that have arisen in dealing with breaches of the Code have almost exclusively related to the available sanctions.

7. PPC has often been criticised for recommending no action when it has made a finding that the Code has been breached. The Committee would nevertheless point out that the range of sanctions available is limited and, in addition, it is not necessarily appropriate for a formal sanction to be recommended in every case  of  minor  breach  of  the  Code.  PPC  has  nevertheless  felt  somewhat constrained in relation to serious breaches of the Code as it considers that the present provisions relating to suspension are too inflexible and not always appropriate.

Suspension from the States

8. Suspension from the States is a very serious sanction for any member and it is thankfully  over  10  years  since  the  States  have  had  cause  to  vote  on  a suspension. Suspension is nevertheless a sanction available to parliaments to express their displeasure with any member who has committed a grave breach of  order  or other  breach  of  the  agreed  rules  of  discipline.  It  is  therefore important that suspension is seen as an effective deterrent for members. Some examples of suspension procedures and recent incidents in other parliaments are attached at the Appendix.
9. Suspension from the States Assembly may arise in a number of circumstances and  the  amendments  being  proposed  distinguish  between  the  various possibilities.  A  proposition  to  suspend  a  member  could,  for  example,  be lodged as a result of a serious breach of the Code of Conduct for Elected Members or some other incident outside the Assembly. In these circumstances a proposition must be lodged for 2 weeks and then debated in the usual way, with the only exception from the normal debating rules being that the member who is the subject of the proposition is able to speak twice.
10. Suspension may also be considered to be a necessary and more immediate sanction following an incident of disorderly behaviour in the States Assembly itself. Suspension of parliamentarians across the world often happens in these circumstances. At present, under Standing Order 110, the presiding officer can, after giving appropriate warnings, require a member to withdraw from the Chamber if the member has (a) obstructed the meeting; (b) conducted himself or herself in a grossly disorderly manner; (c) used offensive, objectionable, unparliamentary  or  disorderly  words  and  refused,  when  directed  by  the presiding  officer,  to  withdraw  the  words  or  apologise;  (d)  persistently  or wilfully  refused  to  conform  to  any  standing  order;  or  (e)  persistently  or wilfully disregarded the authority of the presiding officer. If the presiding officer exercises his or her powers in this way, the presiding officer can direct that the exclusion should last for the remainder of the day or for a lesser period if the presiding officer considers that to be more appropriate.
11. If  a  member  is  excluded  by  the  presiding  officer  in  these  circumstances Standing Order 111 then allows any other member to propose, on the next day that the States meet, that the member who had been excluded on the previous sitting day should be suspended from the States. Standing Order 111 specifies

that  any  member  can  make  this  proposal  if  he  or  she  considers  that  the requirement to withdraw on the previous sitting day was insufficient sanction for the actions of the member'. Whether or not such a proposition will be considered appropriate will obviously depend on the circumstances of the exclusion. If a member has simply made an intemperate remark but, in the heat of the moment, refused to withdraw it and been excluded, other members may consider that no further sanction is required. If, however, a member has, for example, been grossly disorderly and had to be physically removed from the Chamber, other members may consider that suspension is an appropriate sanction and decide to propose this under Standing Order 111.

12. Any proposition to suspend a member made under Standing Order 111 would be debated in the normal way, with all members able to speak and the member who was the subject of the debate able to speak twice. PPC has reviewed whether this procedure, which is clearly appropriate in any other debate on suspension, is equally appropriate in the very particular circumstances of a proposition brought under Standing Order 111 on the next sitting day after exclusion. In practice all members would be fully aware of the events of the previous sitting day and would already have formed a view on whether any further sanction was necessary. It could be argued that to allow the matter to be debated at length could easily lead to a situation where the disorderly member simply decided to repeat the disorderly behaviour leading to a vicious circle of further exclusion from the Chamber etc. The previous Committee's research found no other parliament where proposed suspension immediately after  disorderly  conduct  would  be  subject  to  a  full  debate,  the  normal parliamentary procedure being for the Speaker to put the matter to the vote immediately without debate.
13. Although  PPC  considered  whether  to  propose  amendments  to  the  current procedures to restrict the scope of any debate the Committee concluded that, as the process has never been used to date (and hopefully will never need to be), there was no current evidence of a problem' that needed to be addressed and there would be significant disadvantages in restricting a member's right to defend himself or herself. As a result PPC has decided not to bring any amendments to the Standing Order 111 procedure at the present time. As a result  the  debating  procedure  for  any  proposition  to  suspend  a  member, whether after 2 weeks lodging or without notice under Standing Order 111, would  remain  as  at  present  and  the member  who  was  the  subject  of  the proposition would be able to speak twice in the debate.

15. As  suspension  is  a  serious  sanction  that  should  only  be  recommended following a proper investigation, and not in any way manipulated for political purposes, PPC believes that Standing Orders should be amended to provide that,  subject  to  the  exception  below,  only  the  Privileges  and  Procedures Committee can lodge a proposition to suspend a member. This would mean that  a  full  investigation  would  be  undertaken  by  the  Committee,  which represents all members of the States Assembly, before the proposition was lodged. There would, nevertheless, be an exception that a given number of States members, probably 6, could bring a proposition to suspend another member if PPC had been requested to do so and decided not to proceed. This would preserve the right of all members to bring forward matters for debate whilst ensuring that no suspension could be lodged before PPC had considered

the matter. In practice, of course, if PPC was to investigate a matter and decide not to lodge a vote of suspension this, in itself, would undoubtedly be an  important  factor  for  members  to  consider  during  the  debate  if  the proposition was then brought by other members.

The effect of the suspension of a member

16. PPC considers that suspension is not only to be seen as a sanction but also as a deterrent. If the possibility of suspension is to have any deterrent effect to encourage members to conduct themselves in an appropriate way, the effect of suspension  must  be  seen  to  be  sufficiently  serious.  Having  reviewed  the current wording of Standing Order 164, PPC does not consider that the present provisions  meet  those  criteria.  PPC  therefore  believes  that  the  present provisions on suspension should be strengthened and made more flexible. The comparison between the present provisions and the proposed changes can be summarised as follows.
17. Access  to  the  States  Chamber  and  members'  facilities.  At  present  a member who is suspended cannot access the Chamber and the  members' facilities when the States are meeting. PPC wishes to amend this so that access would be totally prohibited during the period of suspension. The committee believes that it is curious that the States can vote to suspend a member only for that member to be able to access all the normal facilities throughout the suspension as long as the States are not meeting.
18. Undertaking official responsibilities. At present a suspended member cannot take part in any meeting of a committee such as PPC or PAC or a scrutiny panel  but  there  is  currently  no  restriction  on  a  Minister  continuing  to undertake ministerial duties during a period of suspension from the States. In practice it is possible that a Minister may not survive politically after being suspended from States as a result of misconduct but PPC thinks that it is important to make it a formal requirement that a suspended member cannot undertake  ministerial  duties  during  a  period  of  suspension.  The  Chief Minister,  or  another  Minister  nominated  by  him  or  her,  would  have  to discharge the functions during the period of suspension as if the Minister was absent or indisposed.
19. Lodging propositions, presenting reports and submitting questions.  At present  a  suspended  member  cannot  lodge  propositions  or  submit  oral  or written questions and only one minor change is proposed to specify that a suspended member cannot also present a comment or report to the States. This is of particular relevance in relation to a suspended member who is a Minister.
20. Receiving remuneration. At present a member who is suspended continues to receive his or her remuneration in the usual way. In some ways this could be said to reduce the effectiveness of the suspension and PPC notes that, for example, in the United Kingdom House of Commons remuneration is stopped completely during the period when a member cannot undertake his or her official duties as a result of suspension. As indicated below the proposed provisions on suspension are based on a form of graduated scale where the penalties available for a second or third period of suspension during a term of office  are  more  severe  than  on  the  first  occasion.  PPC  is  proposing  that

remuneration should not be ceased during a first suspension during each 3 year States cycle. However on the second suspension during the 3 year period PPC proposes that a member should lose half of his or her remuneration for the  period  of  suspension.  On  any  third  and  subsequent  suspension  the member's  remuneration  would  be  totally  removed.  In  the  event  of  a suspension lasting up to four meeting days this would represent a significant financial penalty and PPC is hopeful that it would therefore act as a significant deterrent in the very unlikely event that a member is suspended for a third time in a 3 year period.

21. Length of suspension. At present periods of suspension are fixed and there is no flexibility to adapt the period of suspension to the seriousness or otherwise of the matter for which the member is being suspended. PPC does not believe this  is  appropriate.  In  addition  the  Committee  does  not  consider  that  the present periods are adequate. At present the period of suspension is counted by a number of meeting days as follows –

1st suspension during a term of office – 2 meeting days 2nd suspension during a term of office – 4 meeting days

3rd and subsequent suspension during a term of office – 6 meeting days

22. In each case the day on which the suspension starts counts as the first of the above days meaning that a first suspension only lasts for one more meeting day after the day on which the States vote on a suspension. If the States were meeting for 3 consecutive days, and the suspension was agreed on the first day, the suspended member would be able to return on day 3 and this can hardly  be  described  as  a  serious  sanction  particularly  as  the  member  is currently remunerated throughout the period of suspension. PPC would point out that the current provisions are also inequitable as the actual length of a period of suspension is totally dependent on the schedule of States meeting dates. In the example above a member could return on day 3 of a 3 day sitting whereas if, for example, the suspension began on the last sitting day before the summer recess, it could last for over 8 weeks.
23. PPC believes that much greater flexibility should be given to the States when voting on suspension and also believes that the maximum periods should be related to a number of weeks and no longer be related to a certain number of States meetings. This will ensure that the period is not affected by the effect of periods of recess. In addition, to ensure fairness for all members in the present structure where the term of office of Senators is not the same as the term of office for Connétable s and Deputies, PPC is proposing that the graduated' scale of sanction for a first, second or third and subsequent suspension should relate to the 3 year States cycle and not to a member's individual term of office.
24. Under PPC's proposals any proposition to suspend a member would, in future, need to specify a proposed period of suspension which would, in the normal way, be open to amendment. The period would nevertheless be subject to a maximum period of suspension to avoid open-ended suspensions of indefinite duration. The proposed maximum periods are as follows and PPC believes

that these represent an appropriate balance between the need for a suspension to be effective whilst not being unduly oppressive –

1st suspension during a 3 year States cycle – 1 week (with no loss of remuneration)

2nd suspension during a 3 year States cycle – 2 weeks (with loss of 50% of remuneration)

3rd and subsequent suspension during a 3 year States cycle – 4 weeks (with loss of all remuneration)

25. PPC believes that these periods are sufficient to act as a realistic deterrent and, because they are only maximum periods, it is possible that any proposition relating to a suspension would propose a period that was shorter than the maximum possible.

APPENDIX

Suspension provisions in other jurisdictions

The table at the end of this section compares the provisions of the current Standing Orders relating to disorderly conduct in the States Chamber with those applied in –

1. the UK House of Commons;
2. the Australian House of Representatives;
3. the Canadian House of Commons;
4. the States of Guernsey;
5. the Isle of Man House of Keys; and
6. the National Assembly for Wales.

The table shows a significant degree of variation in approach to the issue, with the lightest  touch  having  been  adopted  by  Guernsey,  where  the  presiding  officer  is empowered to propose that a named member be suspended for the remainder of the meeting  day.  There  is  no  scope  for  debate,  instead  the  matter  is  voted  upon immediately. No provision for further sanction has been made.

Elsewhere, the presiding officers in Canada, the Isle of Man, Jersey and the UK are granted the power to order a member to withdraw for the remainder of the sitting without resorting to a proposition. In Australia the Speaker can also order withdrawal unilaterally, although the affected member is required to withdraw for one hour only. In the event that withdrawal is regarded as insufficient punishment, the option to suspend a member is generally available in the other jurisdictions. Parliaments in Jersey, Australia, Canada and the UK rely on a member other than the presiding officer to move a proposition calling for a member to be suspended, whereas in the Isle of Man it is the presiding officer that moves the motion (however, the Isle of Man House of Keys also requires that at least 16 of the 24 members vote in favour of suspension for such a motion to be adopted). The Welsh Assembly adopts a slightly different approach in that suspension is not pursued under Standing Orders unless the member refuses to comply with an order to withdraw. Of the jurisdictions listed, only Jersey employs a cooling off period following which, if a proposition to suspend is made,  the  member  accused  of  disorderly  conduct  can  present  their  case  to  the Assembly before the matter proceeds to a vote.

Regarding the effects, and length, of suspension, Jersey has adopted longer suspension periods than those permitted in Guernsey or Canada. The Isle of Man House of Keys has the option to take a much stronger line than Jersey in respect of second and subsequent suspension, with suspension lasting until the House resolves that it be terminated. The UK and Canadian House of Commons and the Welsh Assembly require  that  suspended  members  refrain  from  serving  on  committees  (with  the exception in the UK of committees for the consideration of private bills). Both the UK House of Commons and the Welsh Assembly withhold a member's salary for the duration of any suspension. This rule was introduced in the UK House of Commons in June 1998. It is also the case that a member who refuses to withdraw from the UK House of Commons, necessitating the use of force to ensure compliance, can be suspended for the remainder of that session.

Although the power of the UK House of Commons and the Welsh Assembly to withhold member's salary does not appear to have been adopted by a substantial number of other parliaments worldwide, broadly comparable rules do exist elsewhere. In 1991 the Parliament of New South Wales, Australia, adopted a motion that the consequence of suspension for disorder should be forfeiture of the relevant daily portion of the base salary of the member concerned. More recently, in November 2007 the Legislative Council of Western Australia was advised that it was unclear whether the enactment of legislation in 1975 had, by necessary implication, abrogated the power of the Council to suspend Members  without pay1. Although the Canadian House of Commons does not have the option to withhold a member's salary, the provincial Legislative Assembly of Saskatchewan requires that members forfeit $200 per day, while the Legislative Assembly of British Columbia deducts salary at a rate determined by the Assembly Management Commission.

When comparing procedures for addressing disorderly conduct in the States of Jersey with those of other jurisdictions, it is important to remember that Jersey operates largely  without  a  political  party  system.  In  many  other  comparable  jurisdictions individual members are held accountable by their party, as well as by the parliament and, ultimately, by the electorate. Clause 8 of the rule book of the Labour Party of the United Kingdom charges the party's National Executive Committee with upholding and enforcing the constitution, rules and standing orders of the party and to take any action it deems necessary for such purpose'. It enjoys the power to suspend or take other administrative action against individual members of the party' subject to the provisions of the party's own disciplinary rules.

Recent examples of suspensions in other jurisdictions

John McDonnell MP – UK House of Commons – 15th January 2009

On  15th  January  2009,  during  questions  that  followed  a  statement  made  by  the Secretary  of  State  for  Transport  on  future  transport  infrastructure  in  the  United Kingdom, Mr. John McDonnell, the MP for Hayes and Harlington, rose and lifted the Mace as a protest against the proposals for the expansion of Heathrow Airport. He was immediately named' by the Deputy Speaker and the matter of his suspension put to the vote immediately without debate. In accordance with Standing Order 44(2) he was suspended for 5 sitting days.

4 Scott ish Socialist MSPs – Scott ish Parliament – 30th June 2005

In a protest related to the right to demonstrate at the G8 summit that was to be held in Scotland the following week 4 Scott ish Socialist MSPs marched to the front of the Chamber during First Minister's questions brandishing placards. They were escorted from the Chamber on the instructions of the Presiding Officer and, later in the sitting, the Parliament agreed a motion that they should be excluded from all proceedings of the Parliament for the month of September 2005 and that their right of access to the Parliamentary complex, their right of access to Parliamentary facilities and services together with their salaries and allowances were withdrawn for that one month period.

1 Select Committee of Privilege on a Matter Arising in the Standing Committee on Estimates and Financial Operations – November 2007

Lord Truscott and Lord Taylor of Blackburn – House of Lords – 21st May 2009

The House of Lords voted to suspend two Labour peers from Parliament until the end of the parliamentary session, a period of some six months for misconduct, the first such action since the 17th Century. Lord Truscott and Lord Taylor of Blackburn were found by a Lords committee to have been willing to seek to amend legislation in exchange for cash.