Does the jurisdiction of the Parliamentary Commissioner for Standards over donations to Members of Parliament extend to members who are ministers? The current Commissioner, Kathryn Stone, seems to have decided that it does not, a situation she agreed is ‘bonkers’.

The problem is that the Code of Conduct for Members of Parliament says that ‘Members are not required to register …. benefits received in their capacity as a Minister’ (Guide to the Rules relating to the Conduct of Members, para 16). The Guide explains that ministers are subject to the Ministerial Code, enforced by the Prime Minister, rather than by the House of Commons.

As a result, where the Prime Minister referred donations to himself to his Adviser on Ministerial Interests and the Adviser declared that the donations in question were received in the Prime Minister’s ministerial capacity but went on to exonerate the Prime Minister, the Parliamentary Commissioner concluded that the Guide to the Rules excludes her from carrying out her own investigation.

The Parliamentary Commissioner might have decided that the Adviser was wrong and that the donation had been made to the Prime Minister in his parliamentary capacity, but, perhaps understandably given both the facts of the case and the interests of institutional harmony, she chose not to go down that route.

But it is worth pointing out that the situation seems to have arisen in the first place because of a contestable assumption about the jurisdiction of the Electoral Commission. The Political Parties, Elections and Referendums Act 2000 (PPERA) requires certain donations to be reported to the Commission. The requirement covers not only political parties but also all individual members of political parties.

As a result, as originally set up, the Act required all Members of Parliament, as individuals, to report relevant donations to the Electoral Commission, an obligation that existed separately from their duties to Parliament to declare donations on the Register of Members’ Interests.

MPs objected that they were being required to report the same donations twice. Since the Parliamentary rules were on the whole stricter than the legal limits, it seemed to be a waste of their time to make them report a subset of their donations to the Commission as well.

These complaints resulted in s 59(3) of the Electoral Administration Act 2006 which amended PPERA to require the Electoral Commission to make ‘such arrangements as they think appropriate’ where ‘donations [are] received by a holder of a relevant elective office… if (a) the relevant body has in place arrangements requiring the holder of the office to report such donations; and (b) the Commission think that the arrangements correspond to the requirements of para 10 [the provision that sets out the information that must be recorded about permitted donations]’ (PPERA Sch 7 para 15A).

In 2009, the Secretary of State made a commencement order for the new requirement with regard to members of the House of Commons. Since then the practice has been for MPs to declare donations solely to the relevant Parliamentary authorities and not to the Electoral Commission, which now merely reads the Commons Register of Interests.

Discussions of the Prime Minister’s obligations to report donations seem to have assumed that since he is covered by Parliamentary rules on registering donations he has no obligation to report them to the Electoral Commission. But is that assumption correct?

The first issue is whether, in the light of the declaration by the Parliamentary Commissioner that she cannot investigate donations to ministerial MPs where the donation is covered by the Ministerial Code, condition (a) has been fulfilled. Does the House of Commons now have arrangements ‘requiring [MPs] to report … donations’ which have been ‘received’ by a holder of that office? It would seem not. The Commons only has arrangements requiring some MPs to report donations but not all MPs.

There might be an argument that the requirement in (a) is fulfilled by the mere existence of a scheme of reporting no matter how inadequate, since the adequacy of the scheme is to be judged by the Electoral Commission in accordance with (b). But there must be some limit to what one might claim to be ‘arrangements’ that fulfil (a), otherwise there would be no point at all in the existence of (a). Condition (b) would have been drafted to stand on its own. Exempting from control arguably the most important set of MPs at the very least puts into doubt whether that line has been crossed.

The second issue is whether under (b) the Electoral Commission can still reasonably hold the view that ‘the arrangements correspond’ to the requirements of the Act about the information that must be recorded.

Two points arise. First, if the Parliamentary Commissioner is right, the House of Commons Code now seems to contain no provisions at all that cover ministers. And secondly, even if one allows that the House of Commons can further delegate its responsibilities to the Prime Minister and the Adviser, the scheme of reporting under the Ministerial Code comes nowhere near fulfilling the requirements of the Act. The law requires all donations of over £1500 to be recorded and reported within 30 days (PPERA Sch 7 para 10). The Ministerial Code applies only to the subset of gifts that ‘would, or might appear to, place him or her under an obligation’, and contains no provision for recording or reporting them within 30 days. The only reporting mechanism in the Ministerial Code is that Departments publish ‘hospitality’ quarterly.

The importance of the second point can be seen in recent events. Donations from the Conservative Party and Lord Brownlow for the redecoration of the Prime Minister’s flat would never have come to light in the ordinary course of events. When they were revealed, the Adviser decided that they did not put the Prime Minister under an obligation since the donor was either a political party to which he had an obligation already or was a Good Chap who would never dream of taking advantage of his position. But under the Act, and under the House of Commons Code, all significant donations must be revealed and the public can decide for themselves whether the MP was compromised by them.

Consequently, one way or another, the assumption that para 15A applies looks unsound. If it does not apply, the Electoral Commission is under no obligation, and has no power, to disapply the effects of the Act with respect to the House of Commons. MPs, including Ministers, should still be reporting donations to the Electoral Commission, which, incidentally, must also still have the power to investigate the Prime Minister as an individual.

If MPs want quickly to rectify the situation and restore the position that they need report donations only once, they have two options: persuade the Prime Minister to change the Ministerial Code so that it meets the standards of the Act, in the hope that the Electoral Commission, and the courts, have no objection to sub-delegation; or amend the Commons Code to remove the exemption for ministers.

The lesson in all this is one familiar to experts in safety engineering. The original system contained an element of belt-and-braces, of ‘redundancy’, which always strikes some people as inefficient. But the danger of removing redundancy is that the whole system becomes more vulnerable and more likely to fail in hostile conditions.

David Howarth is Professor of Law and Public Policy at the University of Cambridge

(Suggested citation: D. Howarth, ‘Who Monitors Donations to Ministers – Parliament, the Prime Minister, or the Electoral Commission?’, U.K. Const. L. Blog (31st January 2022) (available at https://ukconstitutionallaw.org/))