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Enforcement procedure (general)

Contents

Introduction
Making a complaint
Preliminary assessment
Minor cases procedure
Investigations
Outcomes of an investigation
Confidentiality
Support for members
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 that do not relate to bullying, harassment or sexual misconduct (BHSM), which fall under the separate Enforcement procedure (bullying, harassment and sexual misconduct).

Making a complaint

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

3. 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.

4. The specific allegation should be made to the Commissioner in private and not publicised until the complaint has been finally determined.

5. 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.

6. A complaint made by a third party is the usual basis for the Commissioner to start an investigation. In exceptional circumstances however, and with the agreement of the Conduct Committee, the Commissioner may start an investigation in the absence of a complaint. This may be at the request of the member concerned or if by other means the Commissioner becomes aware of evidence sufficient to establish a prima facie case that the Code has been breached.

Time limit for complaints

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

8. 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.

Preliminary assessment

9. 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.

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

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

  • which are not within the Commissioners’ remit (see paragraphs 12 and 13);
  • 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;
  • which substantially repeat allegations which have already been the subject of an investigation (unless there is significant fresh evidence in their support); or
  • where it would be disproportionate to consider further the alleged misconduct.

The Commissioner’s remit

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

  • failure to register relevant interests;
  • failure to declare relevant financial interests;
  • breaches of the exclusive benefit rule and the prohibition on providing paid parliamentary advice and services;
  • breaches of the rules agreed by the House on financial support for members and the facilities of the House;
  • breaches of the rule that members should act always on their personal honour;
  • breaches by members’ staff of the Code of Conduct for Members’ Staff.

13. 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;
  • the funding of political parties;
  • alleged breaches of the Ministerial Code; and
  • members’ non-parliamentary or private activities.

Outcome of preliminary assessment

14. Following their preliminary assessment, if the Commissioner determines the complaint is within scope and there is sufficient evidence to establish a prima facie case that the Code has been breached, the complaint may proceed either to investigation or to the minor cases procedure. If a complaint falls within paragraph 11 the Commissioner will dismiss it. The Commissioner’s decision at this stage is final and cannot be appealed.

15. The Commissioner writes to both the complainant and the member concerned to inform them of the outcome of the preliminary assessment. In doing so, the Commissioner will normally disclose the complainant’s name and the content of the complaint to the member.

16. 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.

17. If the Commissioner decides that the complaint will proceed, it may be considered under the minor cases procedure if the Commissioner, taking all the circumstances of the case into account, determines that the alleged breach is minor. In doing so, the Commissioner will consider the apparent complexity of the case and the potential outcome were the complaint to be upheld. Otherwise, the complaint will proceed to investigation.

Minor cases procedure

Process

18. The Commissioner first informs the member concerned of the nature of the complaint and the identity of the complainant, and provides copies of the evidence in support of it. They set out the provisions of the Code that appear to be engaged and invite the member to respond in writing.

19. The Commissioner may seek further information to assist them in determining whether the Code has been breached.

20. The Commissioner may at any time decide that the case is no longer suitable for the minor cases procedure and should proceed to investigation.

21. No information will be made public while a case is being considered under the minor cases procedure.

Outcome

22. If the Commissioner determines that there has not been a breach of the Code, the complaint is not upheld.

23. If the Commissioner determines that there has been a breach of the Code and the member agrees, the Commissioner then decides what action is needed to rectify the breach. This may include a written apology to the Chair of the Conduct Committee.

24. If the member does not agree with the Commissioner’s determination that there has been a breach of the Code, or does not undertake the action prescribed by the Commissioner, the complaint shall proceed to an investigation.[2]

25. Basic information on the outcome of all cases concluded under the minor cases procedure is published on the Commissioner’s parliamentary webpage.[3]

26. The complainant is informed of the outcome of the case when the information is published on the website.

Investigations

Process

27. 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.

28. The Commissioner may pursue the investigation by seeking further evidence and information as necessary, including by interviewing the member concerned.

29. Members must supply written evidence as requested in a timely manner, and in their own name. Members are entitled to seek advice (see paragraph 57), but letters sent on their behalf by legal advisers or others will be disregarded. They 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 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.

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

31. Complainants have no formal locus when a complaint is being investigated: they have no right to be called as a witness, though they are expected to co-operate with any investigation. They will be informed of the outcome of their complaint once the process has completed.

32. Before finalising their report and (if applicable) recommending a sanction, the Commissioner will share their draft report and provisional findings with the member 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 on investigations

33. For all investigations, the Commissioner publishes a statement on their webpage setting out basic information about the case.[4]

34. Unless the Commissioner considers it inappropriate to do so, the name of the complainant will be made public in the Commissioner’s report.

35. The identity of those who give evidence to the Commissioner during an investigation will be shared where necessary with those directly involved in the investigation but will not be made public during the investigation. The Commissioner has discretion to anonymise witnesses on publication of their report. This may involve some redaction in reports.

Outcomes of an investigation

No breach of the Code

36. If the Commissioner finds that there is no breach of the Code, a report is published on the Commissioners’ webpage.[5] The member will receive the final report shortly before publication, and the complainant will receive the report on publication.

Breach of the Code

37. Following an investigation where the Commissioner has found a breach of the Code, they may recommend remedial action or a sanction.

Remedial action

38. Remedial action may be agreed if the member acknowledges they are in breach of the Code and the Commissioner determines that the breach is of a nature that no sanction is warranted.

39. Remedial action will involve any steps the Commissioner considers necessary for the member to correct the position—for example, correcting their entry in the Register of Lords’ Interests. This may include a written apology to the Chair of the Conduct Committee.

40. Cases resolved by remedial action will result in a report on the Commissioners’ webpage.[6] The complainant will be informed of the outcome of the case on publication of the report on the webpage.

41. If the member does not agree to the recommended remedial action, the Commissioner will submit their report, including their recommended sanction, to the Conduct Committee.

Sanction

42. Where the Commissioner upholds a complaint and considers that a sanction is warranted, 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 take action to regularise the position where this has not been agreed as remedial action.
  • requiring the member to make a personal statement of apology in the House.
  • 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 denied access to the system of financial support for members 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.[7]
  • recommending to the House that the member be expelled from the House.[8]

43. The appropriate sanction in each case will be assessed by reference to all the circumstances surrounding the breach, including any aggravating and mitigating factors.

44. 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.

45. 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 and the Commissioner. Having heard those representations, the Committee decides whether to uphold or vary the recommended sanction.

Appeals

46. 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, they are informed of the deadline by which they may submit an appeal to the Committee. The appeal may be against the Commissioner’s finding or the recommended sanction (or both).

47. 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 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.[9]

48. 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;[10]
  • points of process;
  • the emergence of significant new evidence; or
  • the severity of the sanction.

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

Report to the House

50. 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.

51. The Conduct Committee will normally append the Commissioner’s report to its report. Before publishing any report, the Conduct 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.

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

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

54. 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

55. 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.

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

Support for members

57. Members 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.

58. Members can contact the Parliamentary Health and Wellbeing Service for advice, guidance and support with mental and physical health.[11]

Principles of the enforcement process

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

60. 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.

61. 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.

62. 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).

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

Parliamentary privilege

64. 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 cases (including both an investigation and the minor cases procedure), but a complaint is not regarded as covered by parliamentary privilege unless and until the Commissioner has decided to undertake an investigation or to consider the complaint under the minor cases procedure. Where the Commissioner investigates only a part of a complaint, only the matters accepted for investigation are covered by parliamentary privilege.

65. From the point that the Commissioner decides to undertake an investigation or considers a complaint under the minor cases procedure, 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.

66. 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

Former members and leave of absence

67. The Commissioner may not investigate a complaint about a former member of the House.

68. If a member is under investigation when they leave the House, the investigation terminates at that point except in cases where the Conduct Committee is satisfied that there is a strong public interest in the investigation being completed.[12]

69. If a member applies for leave of absence to avoid an impending investigation or sanction (or while an 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.

70. 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

71. 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.

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

73. 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. In proceeding to investigation, the Commissioner may need only to produce a draft report of their findings and give the member the opportunity to comment on those findings (see paragraph 32).

  3. The Commissioner has discretion not to publish information on cases of a breach of the Code of Conduct for Members’ Staff if it would be disproportionate in the circumstances.

  4. The Commissioner has discretion not to publish information on an allegation of breach of the Code of Conduct for Members’ Staff if it would be disproportionate in the circumstances.

  5. The Commissioner has discretion not to publish a report on an allegation of breach of the Code of Conduct for Members’ Staff if it would be disproportionate in the circumstances. In such instances the Commissioner will inform the sponsoring member of the outcome.

  6. The Commissioner has discretion not to publish a report on case of breach of the Code of Conduct for Members’ Staff resolved by remedial action if it would be disproportionate in the circumstances. In such instances the Commissioner will inform the sponsoring member of the outcome.

  7. 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.

  8. 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.

  9. 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 29).

  10. In determining whether the Commissioner was “plainly wrong”, the Committee must find that 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.

  11. 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.

  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”.