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Enforcement procedure (bullying, harassment and sexual misconduct)

Contents

Introduction
Making a complaint
Preliminary assessment
Investigations
Outcomes of an investigation
Confidentiality
Support for members and complainants
Principles of the enforcement process
Other matters

Introduction

1. The House of Lords Commissioners for Standards consider alleged breaches of the Code of Conduct for Members of the House of Lords (‘the Code’) and the Code of Conduct for House of Lords Members’ Staff, in accordance with the enforcement procedures which are agreed by the House. This document sets out the process for allegations of breaches of the Code relating to bullying, harassment or sexual misconduct (BHSM). All other complaints are considered under the separate Enforcement procedure (general).

2. These procedures are similar to those that operate under the Independent Complaints and Grievance Scheme (ICGS), the Parliament-wide scheme under which members of the parliamentary community may report allegations of BHSM. Further information about the ICGS, including about the support available for complainants and respondents, is available at: parliament.uk/about/independent-complaints-and-grievance-scheme.

Making a complaint

3. A complaint alleging that a member of the House of Lords has breached the Code may be made in writing, either by email to lordsstandards@parliament.uk or in hard copy sent by post.[1]

4. Alternatively, complaints may be received through the independent ICGS Helpline on 0808 168 9281 (freephone) or at support@ICGShelpline.org.uk. Such complaints, if they relate to House of Lords members or members’ staff, will be forwarded by the Helpline to the House of Lords Commissioner for Standards, and from that point will be handled in accordance with this procedure.

5. The complainant must provide:

(a) an email or postal address for subsequent communication;

(b) an explanation of how they think the member has breached the Code;

(c) as much evidence as the complainant has to support the complaint.

6. The specific allegation should be made to the Commissioner in private and not publicised until the complaint has been finally determined. In serious and deliberate breaches of confidentiality by the complainant, the Commissioner may decide not to consider the complaint or to discontinue an investigation into it.

7. The Commissioner will not without good reason consider either anonymous complaints or ones where the complainant is not prepared to have their name and complaint disclosed to the member concerned.

8. Only those directly affected by the alleged behaviour can make a complaint or exercise the other rights described in this procedure. Third-party complaints are not admitted.

Time limit for complaints

9. The complaint must usually be made within four years of the time the conduct occurred.

10. In exceptional circumstances the Commissioner may investigate conduct which occurred more than four years before the complaint was made, subject to the agreement of the Conduct Committee, which will be granted only if the Committee considers that there is a strong public interest in the matter being investigated.

11. There is no time limit for allegations of sexual misconduct.

Preliminary assessment

12. The Commissioner will first conduct a preliminary assessment of the complaint to determine whether it falls within their remit, and whether the evidence provided establishes a prima facie case that the Code has been breached.

13. The Commissioner may seek further information from the complainant or the member concerned during the preliminary assessment.

14. The Commissioner will dismiss after a preliminary assessment all complaints:

  • which are not within the Commissioners’ remit (see paragraphs 15 and 16);
  • which fall outside the scope of the Code (for example, which do not relate to the member’s parliamentary activities);
  • which are unsupported by evidence sufficient to establish a prima facie case that the Code has been breached;
  • which are vexatious; or
  • which substantially repeat allegations which have already been the subject of an investigation (unless there is significant fresh evidence in their support).

The Commissioner’s remit

15. Matters within the Commissioner’s remit include alleged:

  • behaviour that amounts to bullying, harassment or sexual misconduct in the course of a member’s parliamentary activities; and
  • behaviour that amounts to bullying, harassment or sexual misconduct by members’ staff.

16. Matters not within the Commissioner’s remit include:

  • alleged breaches of the Code’s general principles which do not engage a specific rule of conduct;
  • policy matters or a member’s views or opinions;
  • members’ non-parliamentary or private activities.

Outcome of preliminary assessment

17. Following their preliminary assessment, the Commissioner will either investigate the complaint, or dismiss it.

18. The Commissioner writes to both the complainant and the member concerned to inform them of whether they will investigate the complaint. In doing so the Commissioner will normally provide the complainant’s name and the content of the complaint to the member. However, when the Commissioner dismisses a complaint at preliminary assessment, they have discretion not to inform the member that a complaint has been made.

19. If the Commissioner dismisses the complaint, they provide the complainant with a brief explanation of their reasons. Where the only evidence cited in support of a complaint is the member’s expression of views or opinions, the complaint will be dismissed on this basis.

20. The complainant has a right to appeal if their complaint is dismissed after preliminary assessment. The complainant must state in writing their reasons for appealing, addressing why they believe that the Commissioner has not correctly followed the procedure in this document. The Chair of the Conduct Committee will review the appeal and determine whether the complainant has arguable grounds for an appeal that would justify putting the matter before the Conduct Committee.

21. If the Chair decides that there are arguable grounds for an appeal, it will then be heard by the Conduct Committee. The Commissioner should provide the Committee with an account of their reasons for dismissing the complaint, which will be shared with the complainant. The respondent will be informed of the appeal and given an opportunity to make a written submission to the Committee. If the appeal is upheld, the Commissioner[2] will commence a full investigation; if it is dismissed, the appellant and the respondent will be informed.

Investigations

Process

22. Having decided to undertake an investigation, the Commissioner first informs the member concerned of the nature of the complaint and the identity of the complainant. The Commissioner also provides copies of the relevant evidence offered in support of the complaint. They specify the provisions of the Code that appear to be engaged and invite the member to provide a full and accurate written response.

23. The Commissioner may pursue the investigation by seeking further evidence and information as necessary. This normally includes a formal interview in private with the complainant, and one with the respondent.

24. Members and complainants must supply written evidence as requested in a timely manner, and in their own name. Members and complainants are entitled to seek advice (see paragraph 52), but letters sent on their behalf by legal advisers or others will be disregarded. Members and complainants may be accompanied to any meeting by a colleague, friend or legal adviser (provided the individual accompanying them is not a witness to the investigation), but there is no expectation that they should be so accompanied. If a member or complainant chooses to bring a colleague, friend or adviser, they are free to consult them in confidence but will be expected to answer for themselves (and not through the friend or adviser) any question put to them.

25. Members are not permitted to cross-examine complainants or witnesses. It is for the Commissioner to decide how to question them.

26. Before finalising their report and (if applicable) recommending a sanction, the Commissioner will share their draft report and provisional findings with the member and complainant so that they have an opportunity to comment on the accuracy of the evidence and on the provisional findings. If appropriate, at that point the member is invited to present any material they wish the Commissioner to consider when recommending a sanction.

Public information and anonymity

27. No information will be made public unless or until a report is published.

28. The identity of the complainant and witnesses will be shared where necessary with those directly involved in the investigation. They will not usually be made public during the investigation or on publication of the report.[3] This may involve some redaction in reports.

29. All parties to the investigation must protect the identity of the complainant and any anonymised witnesses. A failure to do so may constitute a breach of the Code and a contempt of the House.

Outcomes of an investigation

30. With the Commissioner’s agreement, the complainant may withdraw their complaint at any point during the investigation. This would bring the investigation to an end.

Agreed resolution

31. At any time during an investigation, the Commissioner may seek to reach an agreed resolution between the complainant and the member under investigation. This is at the Commissioner’s discretion and may only be reached with the agreement of both the complainant and member.

32. An agreed resolution resolves the complaint and brings the investigation to an end without a finding. The terms of an agreed resolution may include, for example, a letter of apology from the member to the complainant, or the member agreeing to undertake behaviour change training.

33. No report is published when a case is resolved by agreed resolution.

No breach of the Code

34. If the Commissioner finds that there is no breach of the Code, the complainant has the right to appeal against the Commissioner’s findings (see paragraph 40 onwards).

35. If there is no appeal, a report will normally be published on the Commissioner’s parliamentary webpage. The Commissioner may withhold the name of the member in their report, or exceptionally, decide not to publish a report. If a report is published, the member and complainant will receive the final report shortly before publication.

Sanction

36. Where the Commissioner upholds a complaint, they submit their report and recommended sanction to the Conduct Committee. The options that the Commissioner may propose to the Conduct Committee are (any combination of):

  • requiring the member to apologise to the complainant.
  • requiring the member to make a personal statement of apology in the House.
  • requiring the member to undertake coaching to address the behaviour that gave rise to the complaint.
  • recommending to the House that the member be denied access to specific facilities or services of the House, including services that support parliamentary activity, for a specified period.
  • recommending to the House that the member be removed from membership of select committees.
  • recommending to the House that the member be suspended from the House.[4]
  • recommending to the House that the member be expelled from the House.[5]

37. The appropriate sanction in each case will be assessed by reference to all the circumstances surrounding the breach, including the effect of the breach on the complainant(s). Consideration will be given to any aggravating or mitigating factors.

38. If there is no appeal, the Committee considers the sanction recommended by the Commissioner. If the Committee upholds the Commissioner’s recommended sanction it reports accordingly.

39. Alternatively, if the Committee decides that the recommended sanction needs further consideration, it may then invite representations on the question of sanction from the member concerned, the Commissioner and/or the complainant. Having heard those representations, the Committee decides whether to uphold or vary the recommended sanction.

Appeals

40. The Chair of the Conduct Committee sets the deadline and timetable for any appeal. When the Commissioner sends their final report to the member concerned and the complainant, they are informed of the deadline by which they may submit an appeal to the Committee.

41. In cases where the complaint has been upheld, the member is entitled to appeal against the Commissioner’s finding, the recommended sanction, or both. In cases where the complaint has been dismissed, or where certain allegations are not upheld, the complainant is entitled to appeal against the Commissioner’s finding.

42. An appeal must be in writing. It should set out the grounds for the appeal with any supporting material. The Committee may decide to hear from the member and/or complainant(s) in person, and to invite representations from the Commissioner. The Chair of the Committee may make further provisions about the procedures to be followed in each appeal.[6]

43. On appeal, the Committee will not reopen the Commissioner’s investigation. The grounds for appeal are limited to the following:

  • the Commissioner was plainly wrong in their finding;[7]
  • points of process;
  • the emergence of significant new evidence; or
  • the severity of the sanction.

44. On appeal a recommended sanction may be endorsed, reduced or increased.

Report to the House

45. In all cases when the Commissioner has submitted a report to the Conduct Committee, or the Committee has considered an appeal, the Committee will report to the House.[8]

46. The Conduct Committee will normally append the Commissioner’s report to its report. Before publishing any report, the Committee will consider whether any decisions relating to the anonymity of those referred to in the Commissioner’s report need changing. This may involve redacting or amending the Commissioner’s report.

47. In exceptional circumstances, the Conduct Committee may decide not to publish the Commissioner’s report.

48. When the Committee reports a case to the House, the Committee clerk sends the member and complainant the report shortly before publication.

49. When the Conduct Committee reports to the House on an individual case, Standing Order 68 requires that the report and any resolution relating to sanction be decided without debate.

Confidentiality

50. All parties must respect the confidentiality of investigations. The requirement to protect confidentiality, and the identity of any anonymised parties, continues following the conclusion of an investigation.

51. A failure to respect the confidentiality of investigations is a breach of the Code (paragraph 29 of the Code).

Support for members and complainants

52. Members and complainants may seek support from close colleagues or advisers, including legal advisers, and may confidentially share information relating to the investigation with those colleagues or advisers as necessary, provided those parties are not witnesses to the investigation; they should inform the Commissioner before doing so.

53. The ICGS Helpline can provide advice and signpost support services for complainants and respondents.[9]

54. Members can contact the Parliamentary Health and Wellbeing Service for advice, guidance and support with mental and physical health.[10]

Principles of the enforcement process

55. The Code of Conduct states that “In assessing, investigating and adjudicating allegations of a breach of this Code, the Commissioner and the Conduct Committee must act in accordance with the principles of natural justice and fairness.”

56. The civil standard of proof is adopted at all stages in the enforcement process. Thus, in order to find against a member, the Commissioner will require at least that the allegation is proved on the balance of probabilities.

57. Proceedings are inquisitorial, not adversarial. The Commissioner is an independent and impartial investigator appointed by the House to establish the facts of a case and decide whether the Code has been breached.

58. Members must co-operate, at all stages, with any investigation into their conduct, or that of any member of staff they sponsor, by or under the authority of the House (paragraph 28 of the Code).

59. Members and complainants are given an opportunity to review and challenge the factual basis of any evidence which the Commissioner relies on in their findings.

60. The Commissioner is usually supported by independent ICGS investigators. The Commissioner may delegate to the investigator any of their investigatory functions to the extent they consider appropriate. However, the Commissioner remains solely responsible for the decisions made and conclusions reached in the investigation.

Parliamentary privilege

61. The Commissioner is an officer of the House of Lords and parliamentary privilege covers them in carrying out their duties and to their reports and publications. It also covers witnesses and parties to their investigations, but a complaint is not regarded as covered by parliamentary privilege unless and until the Commissioner has decided to undertake an investigation. After this point all evidence and correspondence relating directly to the investigation are subject to and protected by parliamentary privilege. Where the Commissioner investigates only part of a complaint, only the matters accepted for investigation are covered by parliamentary privilege.

62. From the point that the Commissioner decides to undertake an investigation, all evidence and correspondence relating directly to the matter is covered by parliamentary privilege. It must remain confidential unless and until it is published. It would be a contempt of the House to publish or disclose it to anyone else without the agreement of the Conduct Committee or the Commissioner. An attempt to obstruct an investigation would also be a contempt of the House.

63. The Conduct Committee has the power to send for persons, papers and records and may exercise this power as necessary in support of the Commissioner.

Other matters

Investigations into former members of either House

64. Where complaints are made against a member of one House relating to their time in the other House, the following procedures apply. The Parliamentary Commissioner for Standards (PCS) and the House of Lords Commissioner for Standards may share information on a confidential basis in such cases.

Former MPs in the House of Lords

65. Complaints against a member of the House of Lords relating to their time in the House of Commons are dealt with under House of Commons procedures for setting up an ICGS investigation and reporting that investigation to the House of Commons Parliamentary Commissioner for Standards (PCS). In line with House of Commons rules, only complaints by current or former members of the parliamentary community are accepted. Complaints must be made to the Independent Complaints and Grievance Scheme helpline.[11]

66. If a member of the House retires during an investigation under these provisions, the case may be concluded in the House of Commons as with former MPs who are not members of the House of Lords.

67. Where the PCS concludes that there has been no breach of the rules, or that there has been a breach that can be rectified, they write to the Conduct Committee to inform them before publishing their report.

68. The House of Commons Independent Expert Panel (IEP) hears any appeal from either party against the PCS’s conclusions.

69. Members of the House are to cooperate with the PCS and the IEP in any investigation. A failure to cooperate is a breach of the House of Lords Code of Conduct.

70. If the conclusion of the process in the House of Commons is that bullying, harassment or sexual misconduct has occurred and that it cannot be dealt with through rectification, the PCS or the IEP (as appropriate) send their report in confidence to the House of Lords Commissioner for Standards. The Commissioner then recommends a sanction to the Conduct Committee. The Commissioner does not re-open any aspect of the investigation.

71. The Conduct Committee receives the recommendation on sanction as set out in paragraphs 36 to 39, and hears any appeal, limited only to the severity of the sanction.

72. If the sanction is a personal statement of apology to the House, the member makes the statement in the House of Lords.

Former Lords members in the House of Commons

73. Complaints of bullying, harassment and sexual misconduct against an MP relating to their time in the House of Lords are dealt with under House of Lords procedures.

74. Where the Commissioner concludes that there has been no breach of the rules, or an agreed resolution is reached, they write to the relevant Commons authorities to inform them. Where the Commissioner concludes that bullying, harassment or sexual misconduct has occurred, the Commissioner or Conduct Committee (depending on whether there has been an appeal) send their report in confidence to the PCS. The member is then sanctioned in line with House of Commons processes.

Former members and leave of absence

75. Save for the exceptions in paragraphs 73 and 74, the Commissioner may not investigate a complaint about a former member of the House.

76. If a member is under investigation when they leave the House, the Commissioner may complete the investigation.[12]

77. If a member applies for leave of absence to avoid an impending investigation or sanction (or while the investigation is under way), the request may be refused. If the Commissioner decides to investigate a complaint about a member who is on leave of absence (in respect of conduct that occurred when the member was not on leave), the leave may if necessary be ended with immediate effect.

78. If the Conduct Committee imposes a sanction on or recommends a sanction in relation to a member who is on leave of absence, the leave may be ended with immediate effect.

Investigations by other bodies

79. If the Commissioner becomes aware that the police or another agency are investigating an allegation against a member of criminal misconduct that is related to an ongoing investigation into an alleged breach of the Code, they may continue their investigation but will not finalise their report until the criminal process concludes.

80. Before finalising their report the Commissioner will take account of any relevant issues which arose during the criminal process.

81. An investigation will be suspended if related proceedings (criminal or civil) become sub judice (within the meaning of the House’s sub judice resolution).

Footnotes

  1. To: The House of Lords Commissioner for Standards, House of Lords, London, SW1A 0PW.

  2. If at the time two Commissioners are in post this will be the Commissioner who did not dismiss the complaint after preliminary assessment.

  3. The Commissioner has discretion to publish such details, if they consider that it would be appropriate. Before doing so they will seek representations from those affected.

  4. If the conduct concerned occurred on or after 26 June 2015, or if it occurred before 26 June 2015 but was not public knowledge before then, the suspension may be for any specified period of time. If the conduct occurred before 26 June 2015 and was public knowledge before then, the suspension may be for a specified period of time not longer than the remainder of the current Parliament.

  5. This recommended sanction is available if the conduct concerned occurred on or after 26 June 2015, or if it occurred before 26 June 2015 but was not public knowledge before then.

  6. All parties, including members of the House, may be accompanied by a colleague, friend or legal adviser, but must answer for themselves any question put to them (see paragraph 24).

  7. In determining whether the Commissioner was “plainly wrong”, the Committee must determine whether the decision under appeal is one that could not reasonably have been reached. In doing so, they must give considerable weight to the findings of the Commissioner who had the advantage of seeing all the evidence and being present throughout the proceedings, and they must be convinced by the plainest of considerations.

  8. The Committee has discretion not to publish a report on an allegation of breach of the Code of Conduct for Members’ Staff if it considers it would be disproportionate in the circumstances.

  9. The ICGS Helpline can be contacted on 0808 168 9281 (freephone 9am – 6pm, Monday – Friday) or by email, on support@ICGShelpline.org.uk.

  10. The Parliamentary Health and Wellbeing Service can be contacted by email at phws@parliament.uk or by telephone on 0207 219 4014. Out of hours, the Individual Assistance Programme helpline can be contacted to provide independent and confidential support on 0800 028 0199.

  11. The Independent Complaints and Grievance Scheme Helpline can be contacted on 0808 168 9281 (freephone) or at support@ICGShelpline.org.uk.

  12. Paragraph 5 of the Code of Conduct states that the enforcement provisions of the Code “apply to all members and former members of the House”.