Implications of the Dame Laura Cox report for the House’s standards system: Initial proposals Contents

The Cox report

14.This section of our Report contains a summary of the principal conclusions of the Cox report insofar as they relate to our responsibilities. It is not intended to provide commentary on or evaluation of the Cox report.

15.The Cox report makes three “fundamental recommendations”:7

16.Dame Laura notes that there is “much to be welcomed” in the ICGS, including the new Behaviour Code, the new bullying and harassment and sexual harassment policies, the recognition that sexual harassment is a separate and distinct form of harassment, and the independence of the new helplines and investigation services.8

17.However, Dame Laura is critical of the decision by the House to approve the new Scheme before knowing the contents of her report:

It is most unfortunate […] that, having set up this independent inquiry into the problems affecting House staff, the Steering Group did not have its findings before them when new procedures now governing members of House staff were still at a formative stage, and therefore at the optimal time for those procedures to be informed by them […].9

18.Dame Laura makes various recommendations for improving the Scheme, including the following:

19.Dame Laura concludes that “the decision that the new Scheme will apply only to complaints about misconduct occurring since June 2017 is a regrettable one and I strongly recommend that it be urgently reconsidered”.16 She dismisses any argument that this would be legally problematic as based on a misinterpretation of the advice given by leading counsel to the Steering Group.17 She sets out detailed principles which should underpin investigations into ‘historical’ allegations, and recommends that:

the House authorities should devise and implement an internal, stand-alone participatory reparation process, to be open and accessible for a fixed period of time, in which these individuals can be heard in confidence, regardless of any inappropriate Non-Disclosure Agreement they may have signed.18

20.Dame Laura reviews the roles of the Parliamentary Commissioner for Standards and the Committee on Standards in relation to the ICGP. She envisages the Commissioner playing a key part in the new system, but argues that the Committee on Standards should not be involved. She states that:

the practical effect of the [new ICGP] procedures is that the Commissioner’s role is heavily circumscribed by the Committee on Standards, which retains overall control and decision-making power in relation both to the original findings of the independent investigator and the imposition of sanctions on any Member against whom a complaint has been upheld. In that sense, little has changed.19

21.Dame Laura states that under the ICGP as agreed in July 2018, in some circumstances:

The complainant will be faced with the prospect of the full Committee on Standards being asked by the MP respondent to overturn a decision by an independent sexual misconduct investigator, following a full and specialist assessment of the evidence. I imagine it will be of little comfort to her to know that she can ask for this important matter to be determined by a sub-committee if she feels intimidated by appearing in front of its fourteen Members. The Member can also appeal against the Commissioner’s decision on sanction, including a decision that the Member should apologise to the complainant, attend training or complete a behaviour programme.

[…] The commendable aims underpinning this Scheme, to ensure that these cases are dealt with appropriately and sensitively, by independent and specialist investigators, and within a reasonable timescale will be seriously frustrated by the prospect of a non-specialist Committee of Members of Parliament and lay members, re-examining the entire process and considering whether to allow the appeals of a fellow Member against both findings of fact and sanction.

This is also too much to ask of the Committee on Standards. Despite the regulatory expertise and diverse backgrounds of the lay members, their specialist experience in these areas will be variable, and the Members will certainly not be trained specialists. Unless they re-run the entire hearing, and try to form their own view of the evidence, they will not sensibly be equipped to assess evidence from witnesses that they will not have seen. The vast majority of decisions on this Committee have in the past been achieved by consensus. In these cases there may be disagreement, but ultimately the lay members have no voting rights and the Members’ votes will always carry the day. The prospect of lay members being able to place on record an “indicative vote” will be of little comfort to a complainant who succeeded in full before the independent investigator many months before, but who now sees that decision overturned by a decision taken by Members of Parliament with whom some lay members disagree.20

22.The report notes the ‘Final Reflections’ of the Committee’s first three lay members, published in 2017, which drew attention to “fragmented responsibility for standards issues, pressures over time and problems over prioritising standards, problems in the Committee’s processes and the absence of clear and meaningful penalties”.21 The report states that an issue during the inquiry was “the general reluctance of Members to judge the misconduct of other Members”: “many contributors testified to this general unwillingness to condemn a fellow MP”.22

23.On lay members, Dame Laura states that:

I have no doubt that the equal number of lay members on the Committee and the diversity of their backgrounds have added a valuable dimension and a wider external perspective to the Committees’ discussions and decision-making.23

24.However, she considers that:

Despite the contribution of lay members, the reality is that it will be Members of Parliament deciding these matters. And all the difficulties inherent in the process would not be alleviated by the giving of full votes to lay members, which will in any event require primary legislation and which some contributing to this inquiry consider “is unlikely to happen.”24

25.Dame Laura concludes that the new ICGP procedures “risks bringing the Committee into serious disrepute”.25 She states that:

This is not to criticise the important and valuable work of the Committee, or the expertise and commitment of any of its individual members. But the system now in place fails the fundamental tests of independence and impartiality.26

26.She therefore recommends, as one of her three “fundamental recommendations”, that:

Steps should be taken, in consultation with the Parliamentary Commissioner for Standards and others, to consider the most effective way to ensure that the process for determining complaints of bullying, harassment or sexual harassment brought by House staff against Members of Parliament will be an entirely independent process, in which Members of Parliament will play no part.27

27.Dame Laura does not specify exactly how this new process would operate. She observes that “different views have been advanced” on this, and adds that “the principle would have to be accepted before the practicalities of delivering it could be carefully considered in conjunction with all the relevant parties”.28

28.She sets out two options: (1) a system based on the Independent Parliamentary Standards Authority (IPSA) model, with an independent organisation established to determine complaints and a panel of independent decision-makers to decide on sanctions; or (2) reforming the role of the Commissioner so that she herself can exercise appropriate powers, “extricated from the requirement of oversight by the Committee on Standards”. Option (1) would require legislation; option (2) could be implemented by the House itself by amendment to the Standing Orders.29 In the case of Option (2), Dame Laura argues for the appointment of “distinguished senior lawyers or retired judges, highly experienced in handling these sensitive cases” to carry out independent investigations and submit their findings to the Commissioner.30

29.Dame Laura considers, but rejects, an argument that the House’s doctrine of ‘exclusive cognisance’ (its privileged right to regulate its own affairs) would preclude the delegation of sanctioning powers either to the Commissioner or to an independent body.31

30.Dame Laura considers that “one of the problems with the current system is the absence of a range of specified sanctions for cases where these complaints are upheld”. She notes that a wider range of sanctions could include “apologies or attendance on training or behaviour programmes, […] the imposition of fines, disqualification from, or suspension of membership of select committees or membership of overseas delegations, the withdrawal of services by House staff, or the withdrawal of financial support for visits abroad or other activities”, with suspension involving the triggering of recall process being reserved for very serious cases where “someone’s fitness to serve as a Member” was called into question.32

7 Cox report, p 6

8 Cox report, para 289

9 Cox report, para 93

10 Cox report, para 294

11 Cox report, para 295

12 Cox report, paras 296–98

13 Cox report, para 299

14 Cox report, para 301

15 Cox report, paras 303–11

16 Cox report, para 315

17 Cox report, para 316–23

18 Cox report, paras 330–49

19 Cox report, para 364

20 Cox report, paras 371–73

21 Cox report, pars 375–77

22 Cox report, paras 378–79

23 Cox report, para 375

24 Cox report, para 380

25 Cox report, para 374

26 Cox report, para 381

27 Cox report, p 6

28 Cox report, para 396

29 Cox report, paras 396–97

30 Cox report, para 401

31 Cox report, paras 383–95

32 Cox report, para 404

Published: 10 December 2018