Amendments to the Independent Complaints and Grievance Scheme
(2 years, 11 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Madam Deputy Speaker (Dame Rosie Winterton)
Before I call the Leader of the House to move the motion, I should inform the House that Mr Speaker has not selected amendment (a) in the name of Sir Christopher Chope.
The Leader of the House of Commons (Mr Jacob Rees- Mogg)
I beg to move,
That this House endorses the report of the House of Commons Commission entitled Amendments to the Independent Complaints and Grievance Scheme, HC 1384, laid on Thursday 22 April; and approves the revised bullying and harassment policy and outline procedure, and sexual misconduct policy and outline procedure, set out in Annexes 1 to 4 of that report.
Before I begin, as I may not have the opportunity tomorrow, may I start by thanking Ray Mortimer for his service to the House? He is leaving after 18 years of serving us, and he has always in my time in the House—and I am a mere stripling of only 10 and a bit years’ service—been one of the friendliest, most approachable and helpful members of the first-class Doorkeepers team. He was welcoming to me from the day that I arrived, and he has always been smiling and positive. He knows better, dare I say, what the business of House is going to be, if one needs advice, sometimes than one’s own Whips know and sometimes even than the Leader of the House himself knows, and this is characteristic of the Doorkeepers. I know that my private office in particular has always appreciated Ray’s good humour, support and friendliness, too. I am sure that Members from across the House will want to thank Ray for his service. I also thank the shadow Leader of the House, who warned me that this was happening, and that is how I knew.
Turning to the motion in my name, the central aim of the Independent Complaints and Grievance Scheme is to help improve the working culture of Parliament. The Government continue to be determined to play our part, giving the House an opportunity to have its say on the proposed reforms and their relative merits in achieving the change we are all striving for. This motion endorses the report agreed by the House of Commons Commission on amendments to the Independent Complaints and Grievance Scheme.
At the time that the ICGS was created, it was important that the scheme was established as rapidly as possible. Built in to the set-up process were two reviews—one after six months and a second after 18 months—both to provide an opportunity for the scheme to be assessed and improvements identified. Inevitably, when looked at over time, there were aspects that required improvement.
I am grateful to Alison Stanley for the dedication and professionalism she has showed in her work reviewing the Independent Complaints and Grievance Scheme, and in particular for her most recent extensive review, published on 22 February. It has been useful to have an independent and expert assessment of the ICGS, providing Parliament with a carefully considered set of recommendations that will help us to hone the scheme further and make Parliament a better place to work.
As the Leader of the House of Commons and co-sponsor of the review, I have taken a keen interest in the report. I am confident that the proposed changes will improve the policies and procedures of the ICGS, while simplifying and streamlining the management of cases. We have already made progress with the implementation of the proposals for textual changes to the policies and procedures concerning complaints of bullying and harassment or sexual misconduct in response to Alison Stanley’s report. These changes, endorsed by the Commission on 22 March, include the retention of the factual accuracy check as the key means of review, the imposition of a time limit for bullying and harassment cases, and textual changes to ICGS policies and procedures.
The motion today will amend the ICGS in several important ways. The language of the ICGS will be amended to make it less pre-judgmental—for example, by removing phrases such as “a case to answer”. The terminology will be updated to reflect language actually used by the ICGS helpline and team. The wording of the bullying and harassment policy will also be amended, to align more closely with that in the Equality Act 2010. The procedure will be altered to enable the independent investigator to consider at the initial assessment stage whether the complaint has already been fully and fairly considered in another context. That is an important development that will mean that double jeopardy is avoided.
Jim Shannon (Strangford) (DUP)
The Democratic Unionist party supports what the Government have introduced, and I want to put that on the record. Whenever we get the conclusions of what the Leader of the House is saying, it will be important for them to be given—I am sure that this is going to be done—to the Northern Ireland Assembly first of all, and to the Scottish Parliament and the Welsh Assembly so that they can endorse them in their own regional Administrations.
Mr Rees-Mogg
I am grateful to the hon. Gentleman for making that extremely sensible point. I would not want to trespass on the exclusive cognisance in their own fields of the various other Parliaments, but if it were thought useful I could certainly ensure that copies of what we propose were sent on an information basis. I am looking at both the SNP and the DUP in the hope that they would not think that that was an impertinence and an attempt to interfere. If those proposals were of use, however, I think that that would be a sensible thing to do.
The ICGS will be streamlined with the removal of the right to seek a review of the draft formal assessment, which is a current means for a complainant to request review when an investigation concludes that the case is not upheld. The factual accuracy check will now be the single point at which both parties, complainant and responder, can correct inaccuracies in the report. The system that we have had until now, which combines a factual accuracy check and a review, has resulted in substantial delay in some cases. We have debated the need for investigations to come to a conclusion more speedily on a number of occasions, and this straightforward measure will help to achieve that.
Another important recommendation concerns the introduction of a time limit for non-recent cases. That will apply only to bullying and harassment cases. The new timeframe will be brought in a year from now, applying to new complaints arising from 28 April 2022. From that date onwards, people can report an incident of bullying or harassment up to one full year after it occurs. That compares with the three-month deadline for claims to an employment tribunal, so the House is once again setting a standard higher than that expected in external workforces. Given the particular nature of sexual harassment cases and the understandable reality that people often need longer to feel able to bring forward such a case, there will be no time limit for those cases.
In addition to the changes recommended by the review, further technical changes are proposed to the policies and procedures, including making it clear that although bullying, harassment and sexual misconduct are defined in the same way across the parliamentary community, the Commissioners for Standards in both Houses are responsible for overseeing investigations, so there are some procedural differences. Other recommendations include aligning the language of the two policies and procedures more closely; amending the procedure documents to be clear that they provide an outline only of the procedure; making it clear that complaints can be made of any former member of the parliamentary community; including in the bullying and harassment policy that victimisation is an aggravating factor, as included in the sexual misconduct policy; and finally, including information on data protection.
I would like to provide some reassurance about whether the changes set out in the motion would have retrospective effect. For the majority of changes to the text of the policies and procedures, the question of retrospection does not arise. Some of the changes are purely linguistic—for example, the change in terminology from “case manager” to “independent investigator”, to ensure that the documents reflect the terminology used by those involved in the process, or the change from “reporter” to “complainant” in sexual misconduct complaints. In those cases, it would not be meaningful to talk about retrospection.
Other changes have been made to reflect existing practice. For example, the factual accuracy check, which was introduced as a procedural step some time ago as a matter of fairness to both parties, is now expressly referred to in the documents. Other changes have been made to clarify the language and to amend defects in the drafting to ensure that the documents clearly reflect the policy intention at the time they were made. It will be for the decision maker to decide how to apply the policy in cases already under way, considering both the language at the time and the intention. I will repeat that for the benefit of the House, because it is a fundamental point: it will be for the decision maker to decide how to apply the policy in cases already under way, considering both the language of the policy at the time and the intention. For Members or former Members, the Parliamentary Commissioner for Standards makes the initial decision, which can then be appealed to the independent expert panel in accordance with the IEP’s own procedures. For former staff, the house service is the decision maker, and for Members’ staff, the decision maker will be the Member.
There are also some minor changes where it is fair and reasonable to apply the changes—
Sir Christopher Chope (Christchurch) (Con)
The Leader of the House has addressed the issue that has been a concern to me and that led to me seeking support for an amendment—the issue of retrospection—but I am rather disappointed that he does not seem to be ruling out the fact that changes to paragraph 4.3 are retrospective. How can it be justified that we make retrospective changes to paragraph 4.3 which, subject to the decision maker, can be allowed to be lawful? Surely if we change the rules we should change them prospectively rather than retrospectively.
Mr Rees-Mogg
My hon. Friend makes an important point. The issue is that it is not at this stage clear what decision the decision maker would make on the language that is currently used in the light of the policy that was adopted by the House. What we are passing today does not change the ability of the decision maker to make a decision on the language of the policy at the time. It is not an attempt to say that the decision maker must follow a new set of words or an old set of words. It is for them to look at what was there at the time both in policy and in terms of language and decide what the right decision is.
Sir Christopher Chope
But paragraph 16 of the Commission report states that the drafting of paragraph 4.3 has merely
“been updated so that it more clearly reflects the policy intention of the Commission and the House, when the resolution relating to non-recent cases was passed in July 2019”.
Without anticipating my own speech, all I can say is that there is no evidence at all that there was such a policy intention at that time, and I am very worried that those words in paragraph 16 could be used by a decision maker in order to justify what I would regard as retrospective change.
Mr Rees-Mogg
It is not for me to say what decision the decision maker should come to, but the decision maker should base any decision on the language of the policy at the time. It would not be fair to make a decision on our clarification ex post facto. I hope that is helpful to the House.
Sir Edward Leigh (Gainsborough) (Con)
I think this is quite important. The House is perfectly entitled to change its rules, but it is an absolutely fundamental part of natural justice that laws should not be changed retrospectively. Just for the sake of argument, we may, for instance, be dealing with a historical case that happened several years ago and the Member has left this House. It is absolutely vital that the Leader of the House makes it clear that that person would be judged according to the rules at the time, not according to the way we are changing the rules now. Do I make myself clear? If he makes that clear, that would be very helpful.
Mr Rees-Mogg
My right hon. Friend is absolutely clear, and that is broadly what I have been saying. What I am not committing to is to saying how the decision maker would interpret the rules as they were at the time, in view of the stated intention that the House had, because there was a degree of disagreement between the two. That is a matter for the decision maker to decide on the basis of the wording at the time, not on the basis of subsequent changes to the wording. What we are doing today should not influence the decision maker’s view of what existed at the time in one direction or the other. It should be based on what existed at the time.
Sir Charles Walker (Broxbourne) (Con)
Then who will decide whether a complaint is in or out of scope according to the rules as drafted two years ago, which are being changed today?
Mr Rees-Mogg
The interpretation of the rules will be for the people who are the decision makers. As I set out earlier in my comments, ultimately it is for the IEP on appeal. In relation to Members’ staff, it would be the Member themselves. For somebody working for the House, it would be the House authorities, and for a Member of Parliament, it would be for the commissioner to determine what the rules at the time meant but not to jump to a change in the rules. That, I hope, is clear. I wish I could give the interpretation of what the rules mean, which is what my right hon. and hon. Friends are asking for, but that is not my territory. I would then be trespassing on the independence of this process, which is its whole virtue. I am simply making it clear that any decision maker should base it on the language of the policy at the time.
Sir Charles Walker
On that basis, it is possible for a variety of decision makers looking at the rules as they were before they were changed to come up with different decisions. Is that not a problem? One decision maker may interpret the rules in a different way from another decision maker, and that in itself creates a problem.
Mr Rees-Mogg
My hon. Friend makes a point that is sorted out by the fact that there is an appeals system and a senior body that can, on appeal, determine this, which I imagine other decision makers would then want to follow. It is not the same as a court, but it is not entirely dissimilar. Lower courts can make a decision, but ultimately there is an appeal body that will make a decision that we would then expect the lower-down decision makers to follow. I do not think that the problem he outlines would last, because there is a proper appeals system to the independent expert panel, which, very much at the request of Members across the House, contains very serious legal expertise, so that we can ensure that in all these cases, natural justice is done and it is fair to both complainants and respondents.
Sir Christopher Chope
Will the independent panel be accessible by former Members, rather than just current Members? In paragraph 3 of the Commission’s report, there is a reference to the changes to which we are referring being
“recommended by staff for clarification and updating of the documents.”
Are those staff involved in any of this decision making? Can my right hon. Friend ensure that those recommendations from the staff are published, so that we can all see what they were and the basis on which they were put forward?
Mr Rees-Mogg
Alison Stanley carried out a very thorough review and spoke to a number of people across the parliamentary estate to get their views and to get a full understanding of how the overall system was working. She drew her conclusions from that and made recommendations to the Commission, the bulk of which will be implemented if the House decides to support tonight’s proposal. When discussions are held in confidence, it is unfair retrospectively to undermine that confidence, so I could not give the commitment that the views given to Alison Stanley should be made public, because the views were not solicited on that basis.
Sir Christopher Chope
It was a mistake to put two points in one intervention. My first point was about whether former Members of Parliament will have access to the independent panel for appeal.
Mr Rees-Mogg
The independent expert panel is available for appeals for people who get caught up in the ICGS system. If any conclusion is made, I believe people have the right to ask to appeal to the panel. Not all appeals are guaranteed, but there is a right to ask for one. As far as I am aware, that applies to anybody who comes up within the system.
Let me come to the other minor changes. The original documents were clear that confidentiality is central to the process, but they made reference to the possibility that either a complainant or a respondent might wish to discuss the matter with a small number of people to seek practical support. Those mentioned were managers and HR services or other relevant parties. The new version refers expressly to trade union representatives and party Whips, because concerns were very reasonably raised that the document should make it clear that a Member who discussed his or her case with a Whip would not be in breach of the requirement of confidentiality. That clarification is relevant in all cases, whether or not the complaints procedure has already begun.
Where there is a real change to the policies and procedures, I am happy to confirm that the changes are not being applied retrospectively. In particular, the new one-year time limit on complaints of bullying and harassment will not be applied to any complaints made before 28 April 2022, and that is clear from the text before the House. Alison Stanley also recommended the removal of the complainant’s right of review because of the degree of overlap with the factual accuracy check. Any complainant who has made a formal complaint before the House’s approval of the amended texts will continue to be able to request a review on the grounds set out in the existing documents, namely that the procedure was flawed or that substantial new evidence has become available.
The purpose of all the changes we are debating today is to ensure that the ICGS is an effective, efficient, clear and comprehensive system for complaints and support. These alterations will make a difference to the running of the scheme and will help us to make progress towards real and sustained culture change in Parliament—something I know Members across the House are keen to continue to champion and support. I commend the motion to the House.
Madam Deputy Speaker (Dame Rosie Winterton)
I know that Mr Speaker and the other Deputy Speakers would want me to agree wholeheartedly with the words of the Leader of the House about Ray Mortimer, whose service to the House is deeply appreciated, as is the kindness and courtesy that he has always shown to us. We will miss his cheerful presence. We wish you well, Ray.
Valerie Vaz (Walsall South) (Lab)
I start by thanking the Leader of the House for outlining the position in relation to the motion. This is a good time to thank the people who started off the whole process of setting up the ICGS, who may have moved on before they had a chance to be thanked. It was a difficult task from the start, and they have done incredibly well. As the Leader of the House has said, Alison Stanley reviewed the process and then undertook an 18-month review, which was published on 22 February. I thank her for her diligence in her work.
The Commission discussed a report on the proposed changes, and that is now before the House. It includes amendments made in response to the 18-month Stanley review, and additional changes to policies and procedures. I want to deal with the response to the Stanley review. We have the introduction of a time limit from 28 April 2022, such that
“a complaint may not be brought more than one year after the incident…complained of.”
At present, there is no time limit on non-recent cases. Stanley suggested two years, acknowledging that tribunal cases have a time limit of three months. The Commission report states that the time limit will be one year from the date of the incident complained of.
The independent investigator will also be able to consider at the initial assessment stage
“whether the complaint has already been fully and fairly considered in another context.”
If it has, there will be grounds for rejecting the complaint. We know of incidents where staff have taken a complaint through the normal grievance procedures and also through the ICGS. As the Leader of the House outlined, we cannot have this double jeopardy. Again, the definitions are being aligned with the Equality Act 2010 to include all the protected characteristics. The 18-month review found that the combination of a factual accuracy check and the right of the complainant to seek a review of the investigators’ findings had delayed some cases substantially, but the factual accuracy check remains available for both parties to correct factual inaccuracies.
I turn to the policy and procedural changes. These will use the same words for both the complainant and respondent for all bullying, harassment and sexual misconduct cases. It is also stated that the existing procedure documents have been shortened and amended to make it clear that they provide an outline only of the procedure, and that further detailed information on the different stages of the process is available from both the ICGS team and the relevant decision-making body.
The Leader of the House has not clarified some of the questions that were asked. I find it concerning that the procedures should be in lots of different places and that they are not in a usable form. We have Standing Orders and “Erskine May”, so things are out there and transparent. We also have obiter dicta from his podcast about how Parliament works. Making it obscure and asking the team in the relevant decision-making body does not give clarity, certainty and transparency. People should not have to go to different places to find out what the procedures are. I am happy to work with him and anyone else to ensure that the procedures are published in full, so that everyone is aware of them. Again, victimising a complainant for bringing a complaint would be treated as an aggravating factor.
I turn to the vexatious question that has been before the House on the change to the drafting in relation to non-recent cases, which was agreed in July—that it should be possible to complain about the conduct of any former member of the parliamentary community, be they Clerks or anyone else, whether or not they hold a parliamentary pass when the complaint is made. As currently drafted, there is an “and” in paragraph 4.3, as the hon. Member for Christchurch (Sir Christopher Chope) said. The person has to hold a parliamentary pass, and the change is to whether or not former members of the parliamentary community—whether it is a Clerk, a Member or anybody else—hold a parliamentary pass. I think that that offends the principles of natural justice, one of which, I remind hon. Members, is procedural fairness—the right to a fair hearing. That means that people know the rules by which they are being judged and that people act fairly, act in good faith, without bias, and give each party an opportunity to state their case.
Procedural fairness, in my view, is not changing the rules and making them apply retrospectively. The Leader of the House did not actually say whether the rules were retrospective or not, so I ask him to confirm whether any changes made today will apply to the current cases that are going forward. I know that he suggested that it was about the decision maker, but actually, as the hon. Member for Broxbourne (Sir Charles Walker) pointed out, it is an individual decision maker. They are all separate and they are all different. That is why there should be a set of rules that everybody can see and everybody can apply. In no quasi-judicial situation do we ever have different decision makers making different decisions on a rule that is not clear. The amendment sought to clarify that, so I hope that the Leader of the House will too.
Dr Julian Lewis (New Forest East) (Con)
I apologise to you, Mr Deputy Speaker, that I did not hear the opening comments from the Leader of the House because I was chairing a Committee meeting in another building. Following as closely as I can what the shadow Leader of the House is saying, as I understand it—on this particular paragraph 4.3, about passes—I presume that she would not have any objection to a change in the rules saying, “Passes used to be required but no longer will be required”, as long as that applied only to future cases. It seems rather strange that it should be said, “We are not changing the rule—we are just clarifying what the House meant previously, and when it previously said that the person has to still hold a parliamentary pass, what it really meant was that he or she did not have to be holding a parliamentary pass at all.” That is surely not a clarification of the rule; it is a change of the rule and, therefore, it should be forward-looking and not retrospective, should it not?
Valerie Vaz
I thank the right hon. Gentleman for that. I think he missed the earlier discussion about the lack of clarity around that, but it should not be the case that current cases are subject to a changes of rules. To me, that is a breach of natural justice. We cannot have different decision makers applying the rules as they interpret them. In my view, we cannot have changes in procedure to cases, because each case will be dealt with differently, but as it was set out—as the hon. Member for Christchurch read out paragraph 4.3—it is fairly clear that there are the two limbs and therefore that any changes should apply to future cases.
Sir Christopher Chope
I obviously agree with the right hon. Lady’s assessment of the importance of getting proper clarity and ensuring that we are not going to have retrospection, but may I also draw her attention to the sentence in paragraph 3 of the Commission report? I think my right hon. Friend the Leader of the House misunderstood that. It says that the changes that we are discussing were
“recommended by staff for clarification and updating of the documents.”
I am not referring to the Alison Stanley recommendations; this is something completely different. These changes that are causing us concern were recommended by staff. Is it unreasonable to ask whether we can see the document in which those recommendations were made and see whether some of the staff who made those recommendations may themselves have been involved or know decision makers?
Valerie Vaz
I do not have an issue with clarity. In fact, I think it is really helpful to see the thinking behind why the changes are being made, so unless there is some confidentiality issue, I do not see any problem. We are here discussing this, and we are not getting any clarity on it—certainly not from the interventions, or from the responses. There is no clarity on this, and I wish there were. There could be. That actually helps to make a system much fairer and work better, so I agree with the hon. Gentleman.
Let me move on to the next part of the Stanley report. She found in her review that those with a BAME—visible minority—background were less likely to have used the ICGS helplines compared with their white colleagues. She was concerned that several surveys
“carried out across Parliament have indicated that these groups are more likely to report that they have experienced bullying and harassment, sexual misconduct or discrimination.”
Despite that finding, there are no specific recommendations in the report that try to remedy it. Certain things have been remedied, but not others. In the light of the current climate, with Black Lives Matter, they should be considered.
Interestingly, in the introduction to its 2019 report “Stand in my shoes”, which has been published again on the intranet for Stephen Lawrence Day, ParliREACH stated that its findings confirmed its view that
“there is insufficient focus on and actions to challenge racial bias (both conscious or unconscious), and that many BAME”—
visible minority—
“staff expend effort each day to defend their right to work in Parliament and to progress through the organisation.”
It found that only 54% felt
“confident…to raise issues of concern”,
and 56% felt “comfortable being themselves”.
We know from other regulatory bodies that regulate professions, such as the General Medical Council and the Solicitors Regulation Authority, that BAME—visible minority—figures are over-represented among those complained about. The Alison Stanley review recommended that
“demographic analysis of the Helpline usage statistics”
should be
“carried out as soon as possible”.
I hope that the Leader of the House will ensure that that is undertaken, because it is unclear whether that recommendation has been implemented, or whether there are any other measures taken to address this issue.
I want to draw hon. and right hon. Members’ attention—they may not be able to see this in some of the reports—to the costs of the ICGS. Its budget for 2021-22 is £1.8 million. We have investigators. I recall from the start of setting up the ICGS that we wanted it to be as fair as possible. Some 28% of those investigators are police officers: these are not criminal matters, although if they are criminal they should go to the criminal justice system, and that is what they are there for.
I think there are many barristers on the Attorney General’s panel, even the C panel, who are not very expensive—they are quite cheap—who could do the investigations cheaply and weigh the evidence in a proper way in a fair system. In the end, we all want a system that works. We want to stop bad behaviour. It is in all our interests to have a fair system that is transparent so that we abide by the rules of natural justice and we get justice for all. In that sense, I support the motion.
As there will not be another opportunity to do so unless the Leader of the House schedules more business, I want to say a few thank yous at the end of the day. The Parliamentary Digital Service is getting us all back to Parliament. We have a message from PDS to turn off and turn on our computers. It is showing us what to do as more people return to the estate. I specifically want to thank Ian Doubleday in Norman Shaw South, who has been really helpful in enabling Members to come back, and in keeping us and Members’ staff safe.
I pay tribute to one of our senior doorkeepers, Ray Mortimer, who has been here since 2003. He has led the Speaker’s procession for eight years, and the procession to the Lords during state opening twice. He has been through six Serjeants at Arms and three Speakers, and is on his fifth Prime Minister. His good friend, mentor and boss—in capital letters—Phil Howse said:
“Ray has been a superb asset not only to the doorkeeper team but to the House, dedicating the past 18 years to delivering fantastic service. His colleagues will miss his knowledge and guidance to the team. He is going from one house of drama”—
here—
“to another, the Marlowe theatre in Canterbury. We wish Ray and his wife Sam good luck and all the very best for the future, and thank him for his amazing public service and the loyal service to the House of Commons.”
I am sure the whole House agrees.
From me, on a personal level, and just as the Leader of the House said, Ray is always good fun. He is always ready with advice about what is going on in the Chamber. He is extremely supportive of Members, all our work and the smooth running of the Chamber. He is always smiling and in a good mood. We will remember him as our little Ray of sunshine. Thank you, Ray, from all of us.
Sir Christopher Chope (Christchurch) (Con)
May I too express my thanks and good wishes to Ray Mortimer?
My interest in the issue arises from when I was on the Standards Committee, particularly during the 2017-19 Parliament. During that time, I was involved in discussions leading up to the creation of the ICGS and its extension in 2019. I have read the conclusion of the House of Commons Commission following Alison Stanley’s review, and I accept that the Commission is right to take the necessary measures in response to that review, but my concerns tonight are about the Commission’s endorsement of
“other changes recommended by staff for clarification and updating”.
I say to my right hon. Friend the Leader of the House that those are changes recommended by staff not in response to a request from Alison Stanley, but off their own bat. I do not know how they have appeared, who they were sent to or why we cannot see them, but it would be useful for the purposes of transparency if we could.
Those are set out in paragraphs 12 to 18 of the report. As has been discussed, the most significant change is in paragraph 16, which changes the scope of the provisions on bullying and harassment. I do not have any problem with the revision, but what I do have a problem with is the possibility that that change is retrospective. The issue of retrospection was discussed quite usefully in the original report. There was a legal opinion from Tom Linden, QC, on what were then being discussed as pre-scheme cases, and the opinion is set out on page 93 in the delivery report, published in July 2018. In that legal opinion, Tom Linden makes it clear that there is a common law presumption against retrospective effect. I hope that we are not going to get into territory where litigation will arise if people feel that the common law presumption against retrospection is not being honoured by the decision makers.
In that opinion, Tom Linden quotes Lord Brightman giving a good definition about what is retrospective and what is not. Lord Brightman says that it is
“retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past.”
It seems to me, from what we have heard, that the changes to paragraph 4.3 would be regarded as retrospective if those principles were applied.
The words in paragraph 16 that these changes are
“so that it more clearly reflects the policy intention of the Commission”
are weasel words. I can say that there is no evidence whatsoever—I was on the Standards Committee—that the Standards Committee, the Commission or this House ever intended, when extending the scope to non-recent cases in July 2019, that it should be possible to complain of the conduct of any former member of the parliamentary community until that person died. In other words, it might be 10, 20 or 30 years hence.
Sir Edward Leigh
Would it not be helpful if the Leader of the House, when he sums up this debate, made it absolutely clear that in the case of historic allegations, if the subject of that complaint is no longer a passholder, then that complaint should be judged firmly on the rules of the time?
Sir Christopher Chope
I think the Leader of the House will say that he has more or less said that, but anything else that he can do to reconfirm that would be extremely helpful. Where is the evidence that there was a misrepresentation of the intention in the wording of paragraph 4.3? The text of the paragraph remained the same in July 2019 as it was in June 2018, and if the new text had been intended to change the rules, then I think the Standards Committee, this House and the Commission would have been totally in opposition to any suggestion that we could expose former Members of Parliament to the risk of being complained against and investigated for the rest of their lives after they had left the House. In a sense, what this Commission report seems to say is that that was the intention, but it was never properly expressed in words. My view is that if that had been the intention and it had been expressed in words, it would never have been passed by this House, which is why I am agitated about this and particularly keen to see the terms in which the staff were recommending these changes.
Mr Deputy Speaker, I realise that other people want to join in the debate, but this issue will not go away unless we clarify that these changes will not be retrospective in any respect.
Owen Thompson (Midlothian) (SNP)
May I associate myself and my party with the comments made by Madam Deputy Speaker, the Leader of the House and the shadow Leader of the House in paying tribute to Ray? [Interruption.] He has changed, just like that! It goes without saying that all of us in this place, who have the use and the benefit of the experience of all the Doorkeeping staff, find that they are just such a resource and provide such guidance, especially for Members when they first come here; they help us with basic things such as finding our way around and how the place works. They really are an amazing team, so I add my thanks and tribute to Ray and all the Doorkeeping team, and I certainly wish Ray all the best for his new endeavours.
I also largely echo the comments made by the shadow Leader of the House, as we very much support these amendments, the intention behind them and what we are looking to achieve. I add my thanks to Alison Stanley for the review that has been conducted. No one deserves to be victimised, bullied, disrespected or harassed in any workplace, let alone in a Parliament, and we certainly should not be tolerating any form of sexual harassment or assault of any kind. So the processes we have in place and the review certainly help in that regard.
We have certainly found that the fact that there is no cut-off date now for sexual misconduct cases is a real, positive step forward. I agree that we perhaps need to look again at the time limitations on other incidents, because that needs further review, but, as with all of these things, this process needs to be organic. It needs to be able to adapt as it moves forward. What we agree tonight cannot simply be what it is for ever more; it needs to adapt to circumstances as we move forward. At a time when trust in politicians is at an all-time low—there is no hiding from that—it is crucial that we do everything we can to enhance that trust with the public, who send us here to do a job. They send us here to represent them, to be upstanding citizens and to do our bit to move things forward. I do not think it is unreasonable to expect that we should all be held to the highest possible standards on dignity, courtesy and respect. It should not detract from anything that we do that we put in place the measures before us tonight.
Janet Daby (Lewisham East) (Lab) [V]
Although I am speaking virtually, I, too, wish to join in expressing my thanks and best wishes to Ray Mortimer.
I welcome the amendments being proposed today. I can see that both Houses take the culture of bullying and harassment extremely seriously in Parliament, and Mr Speaker has shown his commitment to all staff working on the estate. The creation of the independent complaints and grievance scheme is a significant undertaking, and we need a system that works. In the spirit of supporting the scheme to be the best it can be, I need to raise the issue of discrimination against black, Asian and minority ethnic people, to ensure that it is not overlooked—it has already been mentioned in this House, so I am fairly confident that it is not being overlooked in this debate.
ParliREACH, the workplace equality network, has focused on enhancing racial and cultural awareness in Parliament. It released a report in 2019 showing the scale of difficulties that people from diverse backgrounds face. The “Stand in my Shoes” report found that this staffing group in particular faced daily struggles to be treated with respect and with decency; from cleaning staff right through to MPs and peers, we can be made to feel unwelcome in the very place we work in. Staff reported having their presence questioned and equal opportunities denied. ParliREACH said that many of its members were reluctant to speak up when they felt discriminated against. They spoke about worrying that they would be seen as “calling the race card”, and they “feared recriminations” as a result. They felt that they had to be cautious to pick their battles carefully. That should not be the environment that staff have to be work in, on top of the work they have to do; it is very distressing. Parliament must therefore advocate justice equally for all protected characteristics.
I myself had a completely demoralising encounter when I was relatively new to this House. I was made to feel as though I did not belong here, and I feel that this was because of my gender as well as my ethnicity. Although this happened almost three years ago and I went through the formal complaints system, it is still yet to be resolved. Does this tell us that tackling racial discrimination is a priority for the ICGS? It absolutely must be. Cases must be addressed faster, and each one treated with the care and sensitivity it deserves.
ParliREACH pointed out the need to make the ICGS more accessible for its members, including the non-desk-based staff in Parliament, many of whom are from black, Asian and minority ethnicities, for whom it is not easy to make a complaint. If they do not work at a desk or own a computer at home, how can we say that the system is working equally for them? If their only option is to report something to their manager, who might themselves be the problem, it is not serving their needs. We must understand that many people coming from diverse backgrounds struggle to believe that processes such as the ICGS will deliver justice. We need to ensure that they are confident in the process, and that the ICGS is working as well for them as for others. The amendments we are discussing will make going through the ICGS a much smoother process, but I hope that the comments I have expressed will be taken into consideration so that the ICGS can be further improved to best serve all the people it pledges to help and support.
Mr Rees-Mogg
I am grateful to all those who have participated in the debate and, as always, to the shadow Leader of the House who, along with me, serves on the Commission. Of course, although these recommendations are brought forward by me as Leader of the House, they are brought forward on behalf of the Commission, so a number of questions that she raised are questions for the Commission rather than for me as Leader of the House. The Commission has its own spokesman, and as we both serve on it, that is probably the best way of getting the information that the right hon. Lady requires, because I do not wish to blur the lines between what is my responsibility as Leader of the House and what is the Commission’s responsibility.
My hon. Friend the Member for Christchurch (Sir Christopher Chope) went back to his fundamental point, and I want to give him clarification on who may appeal to the IEP. There is one category of Member or former Member that is excluded, and that is a former Member who had the good fortune—if it is a good fortune—to go to another place. They would not be able to use the IEP. Anybody who brings a complaint against a Member is able to appeal to the IEP, and any Member or former Member except a peer is also able to take their case to the IEP.[Official Report, 12 May 2021, Vol. 695, c. 2MC.]
My hon. Friend reiterated his concern about the issue of retrospection. The best I can do is to go back to what I said in my speech, because this is fundamental. The people considering any of these cases must do so looking at the language of the policy at the time. I said that twice when I was speaking, I think I then reiterated it in an intervention, and I have now reiterated it a fourth time in winding up. I think that is very clear. Where I cannot be clear, because we have not had a decision, is on how the panel would interpret the rules at the time, because that is rightly a matter for the panel because it is independent. I hope that I am giving my hon. Friend most of the comfort that he wants, without trying to be a soothsayer and make a prediction of what may be determined in the future.
Dr Julian Lewis
I know that my right hon. Friend will only be able to give me his opinion on this, in the light of what he has just said, but does he know of any specific historical case that is currently under way that would be ruled out of scope unless the rewording of paragraph 4.3 was applied retrospectively?
Mr Rees-Mogg
My right hon. Friend raises a question of considerable importance and one that I have been very careful to avoid in all these discussions. It seems to me that it would be quite wrong to be making this decision, in relation either to what I have said about the rules at the time or to the new rules, with reference to any specific cases. That is fundamental to having a just and fair system. On the question he asks me, I know of gossip, but I have no confirmed knowledge of reports of who may or may not be facing an investigation. In all the deliberations I have done, whether on the Commission, in preparing my speech or in discussions I have had privately with the shadow Leader of the House, I have done it on the basis of general principles rather than trying to consider specific names. I think that is very important.
I thank the hon. Member for Midlothian (Owen Thompson) for his support and for the contribution of his hon. Friend, the hon. Member for Perth and North Perthshire (Pete Wishart), who is a member of the Commission, is always fully engaged with our discussions and makes a serious contribution to our deliberations.
I am concerned about the issue raised by the hon. Member for Lewisham East (Janet Daby) about a complaint that has taken three years. That is one of the reasons that we had the Alison Stanley review. It is one of the issues that has come up up most commonly from people who have been involved with or have an interest in the ICGS—a feeling that things are taking too long. It is absolutely the aim of the Commission and the ICGS itself to ensure that things happen in a timely manner.
I thoroughly agree that every Member of this House and everybody who works for or in the House should be treated with respect and decency, regardless of their ethnic background or any other background issues. That is fundamental to the House, to our democracy and, dare I say, to the constitution of this nation. I think we can go back—although I will not in this speech—to Magna Carta and the idea that we have equality under the law and that we all should have; that is a fundamental position of the British constitution.
I am, of course—I reiterate this—acting for the Commission, but in acting for the Commission. I commend the motion to the House.
Question put and agreed to.
Resolved,
That this House endorses the report of the House of Commons Commission entitled Amendments to the Independent Complaints and Grievance Scheme, HC 1384, laid on Thursday 22 April; and approves the revised bullying and harassment policy and outline procedure, and sexual misconduct policy and outline procedure, set out in Annexes 1 to 4 of that report.
Mr Deputy Speaker (Mr Nigel Evans)
Before we move on to the other motions, I too would like to send my thanks and congratulations to Ray Mortimer, who I can see is hovering at the back. Ray, I have been a Member for 29 years and you have therefore been a part of my life for the past 18 years, as you will have been for many people sitting around the Chamber. You have heard the accolades. You will be able to get Hansard tomorrow, take it home with you and, in your future life, I hope you will flip through the pages and read the warm wishes that you have received from so many people here. I hope it brings you and your family great joy. You have been very much front of house during the past 18 years; irrespective of what you are going to do with the Marlowe theatre, I hope you will take it in the right spirit—as I know you will—when I say, in the future, break a leg. Good luck.
This may also be the appropriate time to thank everybody who has made the past parliamentary Session work for us, under the most strenuous of conditions. I do not think that any of us thought, as we went into this covid situation, that we would be able to get democracy working in the way that we have. It was a bit clunky to begin with, but—my goodness me—we have learnt lessons and it has worked incredibly well. We thank the technicians and the broadcasting unit; we told Ray to break a leg, but they have been breaking their backs to ensure that the democracy here has worked.
We thank everybody: the Doorkeepers, the catering staff, the security, the cleaners and everybody who has made this democracy work. Thank you very much. We hope that there is light at the end of the tunnel, that the stress that they have faced will be eased somewhat with the relaxations in the coming weeks and months, and that we can get our democracy back working as normal. I know that is what everybody in this place wants. Thank you everybody.
I remind the House that, in accordance with the order of the House today and Standing Order No. 41A(3), any Divisions on the next two motions will not be deferred.