Power of the Parliamentary
Commissioner for Standards to initiate investigations
Background
1. In its Twelfth Report, published in November
2009, the Committee on Standards in Public Life (CSPL) recommended
that the Parliamentary Commissioner for Standards should have
power to initiate an investigation into whether a Member may have
breached the rules of the House or the Code of Conduct, without
receiving a complaint.[1]
At present, the Commissioner may investigate a matter only after
receiving a formal complaint or, in exceptional circumstances
and with the agreement of this Committee, at the request of the
Member concerned.[2] Both
the House of Lords Commissioner for Standards and the Independent
Parliamentary Standards Authority (IPSA) Compliance Officer have
the power to investigate a matter without receiving a formal complaint.
The case for a new power
2. The CSPL argued that "it would be sensible
to increase the powers of the Parliamentary Commissioner for Standards
by allowing him or her to conduct investigations proactively without
waiting for a formal complaint."[3]
It did not elaborate on why the change would be "sensible",
but our predecessor Committee did not dissent from this view and
neither do we.[4] There
would appear to be no logic in the House of Commons' Commissioner
having fewer powers to initiate investigations than are possessed
by his counterparts.
3. In addition, it is necessary in our view that
the Commissioner should be able to carry out an inquiry pursuant
to a finding by the Compliance Officer that a Member has breached
the current House of Commons Allowances Scheme. Under the Parliamentary
Standards Act 2009 as amended, the Compliance Officer has power
to require reimbursement by a Member of sums that have wrongly
been paid to him. The Compliance Officer also has limited powers
to recover costs, although neither the Compliance Officer nor
IPSA have power to impose a Parliamentary sanction on a Member,
such as suspension of salary or suspension from the service of
the House. Neither may they require a Member to apologise in person,
on the floor of the House. Only the House may impose such a sanction.
It does so following a recommendation to that effect by this Committee.
4. We therefore see a need for the Commissioner,
who is independent of the Committee, to be able to form a view,
if necessary following an investigation, as to whether a case
reported on by the Compliance Officer may have involved a breach
of the rules of the House or of the Code of Conduct. We anticipate
that the Compliance Officer will wish to refer to the Commissioner
any case which in his judgment raises issues which the House should
be invited to consider. However, the decision whether to carry
out an investigation into a possible breach should be for the
Commissioner, who should base his decision, as he bases his decisions
in relation to complaints, on whether there is sufficient evidence
to justify taking the matter further. Where he finds that there
has been a breach of the rules of the House or of the Code of
Conduct, he will be able to make a report to this Committee, so
that we may decide what if any Parliamentary sanction to recommend
to the House.
5. The change we are proposing to the Standing
Order would also bring the Standing Order into line with the procedure
approved by the House in the Guide to the Rules, which allows
the Commissioner in exceptional circumstances to accept, with
the agreement of the Committee, a request by a Member for an investigation
into an allegation against him or her in the absence of a complaint.[5]
If the proposed change is made, the Commissioner will be able,
if he sees fit, to accept a Member's request as providing sufficient
evidence to justify taking the matter further. Nonetheless, we
suggest that the Commissioner should still seek the agreement
of the Committee before he accepts a Member's self-referral request.
Investigations into matters referred by the Member concerned should
continue to be undertaken in exceptional circumstances only, which
would normally relate to the seriousness of the allegation against
the Member. We do not wish the Commissioner's resources to be
monopolised by Members seeking to clear their names against allegations
that may lack substance.
Possible adverse consequences
and how to avoid them
6. Our predecessor Committee drew attention to
the possibility that providing the Commissioner with a power to
initiate investigations in the absence of a complaint might require
a significant increase in the resources available to him.[6]
We agree that there is a risk that the creation of a power for
the Commissioner to initiate investigations might encourage public
expectations that each and every media report alleging impropriety
by a Member will be fully investigated or that the Commissioner
will go on fishing expeditions for evidence of breaches. The resource
implications of this would, indeed, be potentially enormous. There
is also a risk that the effectiveness of the Commissioner's operations
would be damaged. We are concerned to avoid such a situation arising.
7. Our predecessors recognised this danger by
observing that it would be particularly important for there to
be a firm evidential basis for any decision by the Commissioner
to carry out an investigation in the absence of a complaint. We
agree, and our proposed amendment to the Standing Order takes
full account of this important requirement. Nonetheless, we trust
that the House will continue to provide the Commissioner with
the resources he needs to discharge fully the responsibilities
placed upon him and we would expect him to inform us immediately
were he to feel that necessary resources were lacking.
Recommendation
8. We recommend that Standing Order No 150 be
amended, by leaving out paragraph (1)(e) and inserting
in its place:
(e) to investigate, if he thinks fit, specific
matters which have come to his attention relating to the conduct
of Members and to report to the Committee on Standards and Privileges
or to an appropriate sub-committee thereof unless the provisions
of paragraph (3) apply.
(2A) In determining whether to investigate a specific
matter relating to the conduct of a Member the Commissioner shall
have regard to whether in his view 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.
1 CSPL, 12th Report, MPs' allowances
and expenses, Cm 7724, recommendation 50 Back
2
See Standing Order No 150(2)(e) and paragraph 5, below Back
3
CSPL, 12th Report, paragraph 13.66 Back
4
See the Committee's Second Report, Session 2009-10, Implementing
the Twelfth Report from the Committee on Standards in Public Life Back
5
The Code of Conduct together with the Guide to the Rules relating
to the conduct of Members, 2009, paragraph 104. See also the Fifth
Report from the Committee, Session 2002-03. Back
6
Second Report, Session 2009-10, paragraph 14 Back
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