Amendments to the Independent Complaints and Grievance Scheme

Edward Leigh Excerpts

Wednesday 28th April 2021 Commons Chamber

[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.

--- Later in debate ---

[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.