Publication of information
about complaints
Background
1. In January 2010, our predecessor Committee
agreed a proposal from the Parliamentary Commissioner for Standards
that he should be able to provide more information about individual
complaints against Members. The Committee made an announcement
on 27 January, as follows:
Complaints against MPs: proposal to publish more
information
The Committee on Standards and Privileges has agreed
a proposal from the Parliamentary Commissioner for Standards that
he should publish more information on complaints against Members
of Parliament.
The proposed new arrangements are as follows:
1. The Commissioner will each month place on
his website statistical information about complaints. This will
cover the number of complaints he has received; the number he
has accepted; the number he has not accepted by broad category;
and the number which he has resolved in the previous month, including
the numbers not upheld, rectified, or reported to the Committee.
2. The Commissioner will publish on his website
his determination letters on specific complaints not upheld or
rectified, as soon as possible after they are produced.
3. The Commissioner will publish on his website
the evidence he has received in relation to complaints which he
has not upheld or has rectified. It may not always be possible
to publish the evidence at the same time as the relevant determination
letters are published.
4. The Commissioner will list each month on his
website the names of Members who are subject to an inquiry, with
a brief description of the nature of the complaint.
The Committee has agreed with the Commissioner that
under the proposed new arrangements the Commissioner will publish
statistical information from the beginning of this financial year,
quarterly for the first three quarters, and monthly thereafter,
to be followed by a list of Members currently the subject of an
inquiry. The Committee has agreed with the Commissioner that the
publication policy will apply also to determination letters for
this current and for the last financial year, and in due course
to the evidence on which they are based. The Commissioner will
write to each Member concerned and to each complainant and witness
before publication takes place.
The new publication policy will require the approval
of the House. Further announcements will be made once this has
been obtained.
2. Following this announcement, the then Chairman
of the Committee wrote to the then Leader of the House, requesting
time for a debate to approve the new policy. The approval of the
House was necessary because Standing Order No 150, which sets
out the Commissioner's powers, does not include any power for
him to publish information on his work. Had the Commissioner published
information or papers directly related to his work, he might have
breached Parliamentary privilege. The Standing Order thus required
amendment before the new policy could be implemented.
3. Parliament was dissolved before time for the
House to consider the change could be found. The Commissioner
was, therefore, unable to implement the new policy and has continued
to operate the previous policy, which dates back to 2003.
The 2003 publication policy
4. The policy promulgated in and operated since
September 2003 was founded on a recommendation of the Committee
on Standards in Public Life (CSPL). In its Eighth Report, published
in November 2002, the CSPL suggested that:
... the relationship between the Commissioner and
the media should be more formally defined. The existence of such
a published strategy statement, which would set out what is to
be expected when enquiries are made of the Commissioner, would
give the clarity which has hitherto been lacking.[1]
In response, the then Commissioner and Committee
drew up Procedural Note 5, in which is set out the policy on publication
of information by the Commissioner and his office, which may be
summarised as follows:[2]
- The Commissioner publishes
an Annual Report on his work, which includes information on the
number and types of complaints received and their outcome, including
those cases dealt with by the Commissioner under the rectification
procedure.[3]
- The Commissioner's office does not publish information
on complaints it has received but if asked whether a specific
complaint has been received, is prepared, other than in exceptional
circumstances, to confirm its receipt.
- The Commissioner's office also confirms, if asked,
when the Commissioner has dismissed a complaint; when an inquiry
has been postponed or suspended because the matter under investigation
is the subject of a police investigation or court proceedings;
or when he has submitted his report on a complaint to the Committee.
5. The Commissioner's Annual Reports are published
by Order of the House, having been laid before it by the Clerk
of the House.[4] Each Annual
Report contains statistical information on standards cases for
the financial year in question. The information published in the
most recent Annual Report, for 2009-10, was as follows:
- The number of formal complaints
received.[5]
- The number of complaints accepted for inquiry.
- The number of complaints not inquired into:
- because the complaint fell outside the Commissioner's
remit;
- because the complaint did not concern a breach
of the rules;
- because insufficient supporting evidence was
provided;
- because a similar complaint had already been
accepted.
- The number of complaints upheld:
- resolved through the 'rectification' procedure;
- subject of a Memorandum to the Committee on Standards
and Privileges.
- The number of complaints not upheld:
- without a formal report to the Committee;
- subject of a Memorandum to the Committee;
- other.
6. Further information is either published by
the Committee or may be given out in response to enquiries, as
described in the following sections.
Why the publication policy needs
to change
INFORMATION ON COMPLAINTS RECEIVED
AND ON SELF-REFERRALS
7. Any person—including another Member
of Parliament—may make a complaint that a Member has broken
the rules of the House or has breached its Code of Conduct.[6]
Such complaints must be made in writing to the Commissioner. To
be accepted, they must be within the Commissioner's remit and
they must be accompanied by sufficient supporting evidence. They
must not be anonymous or pseudonymous. The decision whether to
accept a complaint for investigation is entirely for the Commissioner,
who only consults the Committee if the complaint relates to conduct
which took place more than seven years previously or to the conduct
of a former MP.
8. A Member may seek to refer an allegation that
has been made against him- or herself to the Commissioner. The
Commissioner always seeks the agreement of the Committee before
accepting a self-referral for investigation. Although self-referrals
are not complaints, they are handled in the same way once the
Committee has given its agreement and the publication policy applies
to self-referrals as it applies to complaints.
9. Because the information on the number and
type of complaints received and on self-referrals is published
only in the Commissioner's Annual Report, much of it is quite
old by the time it enters the public domain. It is, however, of
legitimate public interest. The Commissioner suggested in January
2010 that he should publish this statistical information on a
monthly basis. The previous Committee agreed and so do we.
10. The Commissioner's policy, other than in
exceptional circumstances, is to confirm in response to an enquiry
that a specific complaint has been received, but he does not provide
further details of the complaint. We recommend that this policy
continue.
11. By "exceptional circumstances"
in the previous paragraph and elsewhere in this Report, we mean
circumstances that the Commissioner and the Committee have agreed
require a departure from the usual practice.
INFORMATION ON COMPLAINTS NOT ACCEPTED
FOR INVESTIGATION
12. It has not been the Commissioner's practice
to publish letters received from or sent to those whose complaints
are not accepted for inquiry. In considering whether such letters
should be published, there is a balance to be achieved between
protecting Members who have been the object of complaints that
have failed to meet the criteria for a formal investigation and
providing information which may be felt to be of legitimate public
interest. In our view, it would not be in the public interest
that the resources of the Commissioner's office should be used
to publish allegations which lack substance or which are not relevant
to his work. We therefore recommend that the Commissioner continue
to publish statistical information about complaints that are not
accepted for inquiry, initially every three months but monthly
by early 2011, but that he should not publish information or papers
relating to specific complaints. A complainant whose complaint
is not accepted for inquiry is free to seek publicity elsewhere.
INFORMATION ON INVESTIGATIONS UNDER
WAY
13. When he accepts a complaint for investigation,
the Commissioner writes both to the complainant and to the Member
concerned, informing them of his decision. The recipients are
informed that they should make no public use of such letters and
it has been the Commissioner's practice, with the agreement of
the Committee on Standards and Privileges, not to publish information
on investigations that are under way. This is to avoid prejudicing
the investigation. It has not been unusual, however, for the fact
that a complaint has been made or accepted to become known and,
when the Commissioner has been asked a direct question about whether
a Member is under investigation, it has been his practice to answer
it, in accordance with the 2003 policy.
14. In our view, the position with regard to
complaints that have been accepted for investigation by the Commissioner
is substantially different from that with regard to complaints
that are still being assessed or have not been accepted for inquiry.
The fact that a formal investigation is under way means that the
Commissioner considers there is sufficient evidence that the Code
of Conduct or the rules relating to registration or declaration
of interests may have been breached to justify taking the matter
further. It is not unreasonable in our view that the fact of the
investigation, the name of the Member concerned and the nature
of the complaint should be public knowledge. On the other hand,
we do not propose that the name of the complainant or the names
of any witnesses should be published by the Commissioner while
an inquiry is under way, or that the private address of any individual
should be published at any stage.
15. We recommend that the Commissioner should
list on his website each month the name of each Member or former
Member who is currently the subject of an investigation by him,
with a brief description of the nature of the complaint or allegation.
Where an investigation has been suspended, for example because
of inquiries by the police into a related matter, this should
be stated. Other than in exceptional circumstances, this is all
the information that the Commissioner should publish prior to
the conclusion of an investigation.
INFORMATION ON MATTERS RECTIFIED
AND ON COMPLAINTS NOT UPHELD
16. Under Standing Order No 150(3), the Commissioner
may in certain circumstances resolve a complaint, without making
a report to the Committee. The circumstances are:
- where a Member has agreed that
he or she failed to register or declare an interest, but the interest
was minor or the failure inadvertent and the Member has rectified
the matter; and
- where a Member has with the agreement of the
Commissioner reimbursed the House for misuse of allowances, facilities
or services.
With the agreement of the Committee, the Commissioner
also makes no formal report to it in most cases where, following
investigation, he does not uphold a complaint.
17. The two sets of circumstances described above
are colloquially referred to as 'rectification'. Most of the cases
resolved by rectification have involved minor or inadvertent breaches
by Members or their staff of the rules relating to officially
supplied envelopes and stationery, or communications with constituents.
Where a Member accepts that he or she breached the rules, apologises
and reimburses the House for the full value of the allowance,
facility or service that was misused, the matter is regarded as
closed.
18. The Commissioner includes a brief description
of each case resolved using the rectification procedure in his
Annual Report, but this information is published some time after
the event and it has not identified the Member concerned. In our
view and in that of the Commissioner, it is no longer acceptable
for information either about complaints upheld and dealt with
through the rectification procedure or about complaints not upheld
to remain unpublished for many months, or for the name of the
Member concerned to be withheld. The present procedure effectively
provides the complainant and the Member concerned with discretion
over whether and when to publish this information, whereas in
the view of the Commissioner and of this Committee publication
should be the responsibility of the Commissioner, acting in the
public interest.
19. An investigation by the Commissioner may
generate substantial quantities of evidence. Evidence related
to complaints that are the subject of a report from the Commissioner
to the Committee is always published with the Committee's Report.
On the other hand, it has not been the practice to publish evidence
relating to investigations that do not result in a report to the
Committee. These include most cases where a complaint is investigated
but not upheld, and all cases where the rectification procedure
is used. The previous Committee considered that such evidence
should be published and we agree, although the evidence may need
to be redacted to protect the privacy of individuals.
20. We recommend that the Commissioner should
always publish on his website letters sent by him rectifying or
not upholding a complaint or self-referral. Evidence that is relevant
to such findings should also be published by the Commissioner
on his website within a reasonable period. We recognise that it
will not always be possible to publish the evidence on the same
date as the letters themselves are published.
INFORMATION ON COMPLAINTS UPHELD,
&C
21. Where the Commissioner upholds a complaint
but it has not been rectified under the procedures set out in
Standing Order No 150(3), he makes a full report to the Committee.
The Committee is then able to undertake its own inquiry. Whether
or not it does so, the Committee makes a Report to the House.
In that Report, it summarises the Commissioner's findings and
any evidence it has received from the Member concerned. The Commissioner's
report, the Member's evidence and any other evidence are normally
published in full as appendices to the Committee's Report, although
redactions may be made to protect the privacy of individuals.
We believe that this system has worked well and we have no proposal
to change it.
Conclusions and main recommendation
22. The 2003 publication policy set out a general
approach to the question of how to achieve a satisfactory balance
between openness and confidentiality.
This approach reflects the need to hold several,
potentially conflicting, principles in balance. One is the public's
right to know, not least in order to have confidence in the effectiveness
of the system for considering complaints. On the other hand, accused
Members are entitled to a fair consideration of the complaint
against them. Their public reputation is at stake and should not
be put at hazard without proper cause. Nor is it necessarily in
the interest of complainants for information to be disclosed,
for example if this would prejudice a successful investigation
of their complaint or put potential witnesses under pressure.[7]
In our view, this statement of principles remains
valid. However, it is clear that the balancing point between them
has shifted.
23. There has been considerable comment in the
media about so-called "secret deals" between the Commissioner
and Members. Much of this comment has been misconceived and some
of it has been entirely mistaken. Rectification is neither a "deal"
nor is it "secret." Both the complainant and the Member
concerned have always been free to make the Commissioner's decision
letters publicly available and from 2009-10 a brief description
of each such case has been published in the Commissioner's annual
report. But we accept that underlying much of the reporting on
this issue has been a genuine concern that information which is
of legitimate public interest has not been actively placed in
the public domain.
24. We acknowledge that proactive publication
of information on complaints and investigations may mean that
greater attention will be paid to breaches of the House's rules
than has been the case even in the last year or two. It is also
necessary to protect the right of individuals who are under investigation
to a fair hearing, in this as in any other forum. Taking all this
into account, we nonetheless consider that it is no longer defensible
that the House should publish so little information so late about
a process which is intended to bolster public confidence in Parliament.
We believe that our proposals for a new publication policy, which
are based on those made by the Commissioner in January 2010, are
proportionate and reasonable. In our view, they strike the right
balance between serving the public interest and protecting the
rights of the individual.
25. Accordingly, we recommend that Standing Order
No 150 be amended, at the end, by inserting the following new
paragraph:
(10A) The Commissioner shall have leave to publish
from time to time—
(a) information and papers relating to—
(i) matters resolved in accordance with paragraph
(3) of this order; and
(ii) complaints not upheld;
and
(b) information about complaints received
and matters under investigation.
The Committee and the Commissioner will revise the
policy set out in Procedural Note 5 to make it consistent with
the proposals set out in this Report and may make further slight
adjustments to the policy in the light of experience.
26. In addition to making provision for future
publication, the House will wish to consider whether and if so
how far to backdate the new policy. We understand that the Commissioner
has been collating determination letters and relevant evidence
for the financial years 2008-09 and 2009-10 and that he will be
preparing papers for the current financial year to date. He expects
to be in a position to publish statistical information for 2010-11
on a quarterly basis for the first three quarters of 2010-11 and
monthly thereafter. We therefore recommend that the Standing Order
change should be effective immediately it is made and that the
Commissioner should be authorised by Resolution of the House to
publish papers relating to complaints rectified or not upheld
since the beginning of financial year 2008-09 and information
about complaints received and matters under investigation since
the beginning of financial year 2010-11.
Summary of how the new publication
policy will work in practice
27. If they are agreed by the House, the proposed
new arrangements once they are fully in place will operate as
follows:
The Commissioner will each month publish on his website
statistical information about complaints. This will cover the
number of formal complaints and self-referrals he has received;
the number he has accepted; the number he has not accepted by
broad category; and the number which he has resolved in the previous
month, including the numbers not upheld, rectified, or reported
to the Committee. He will not publish information about specific
complaints or self-referrals.
The Commissioner will list each month on his website
the names of Members who are subject to an inquiry, with a brief
description of the nature of the complaint or allegation and the
status of the inquiry. Other than in exceptional circumstances,
he will not publish other information about specific inquiries.
The Commissioner will publish on his website his
determination letters on specific complaints or allegations not
upheld or rectified, as soon as possible after they are produced.
The Commissioner will also publish on his website relevant evidence
he has received in relation to complaints or allegations which
he has not upheld or has rectified. It may not always be possible
to publish the evidence at the same time as the relevant determination
letters are published. Other than in exceptional circumstances,
the Commissioner will not publish other information about specific
resolved complaints or allegations.
The Commissioner will write to each Member concerned
and to each complainant and witness before publication takes place.
1 Eighth Report from the Committee on Standards in
Public Life, Cm 5663, paragraph 8.56 Back
2
The full text is at Appendix 1 Back
3
The Commissioner is required by Standing Order No 150(10) to report
each year to the House on the exercise of his functions. Back
4
The Reports are available at www.parliament.uk Back
5
A formal complaint is a complaint made in writing by a named individual. Back
6
Complaints relating to Members' expenses are now made to the Compliance
Officer of IPSA, unless they relate to events before 7 May 2010. Back
7
Procedural Note 5, paragraph 3 Back
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