Amendments to the Independent Complaints and Grievance Scheme

Christopher Chope Excerpts

Wednesday 28th April 2021 Commons Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.