Amendments to the Independent Complaints and Grievance Scheme

Jacob Rees-Mogg Excerpts

Wednesday 28th April 2021 Commons Chamber

[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.

--- Later in debate ---

[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.