ANNEX 2: REPORT FROM THE COMMISSIONER
FOR STANDARDS
Summary of allegations
1. In a letter dated 1 July 2013 (appendix A) Dr D
Keiller made a complaint against Lord Oxburgh. Dr Keiller
alleged that Lord Oxburgh had committed multiple breaches of the
Code of Conduct and was guilty of misconduct in public office.
I conducted a preliminary assessment of the complaint and advised
Dr Keiller that I had identified only one possible breach
of the Code of Conduct which I intended to investigate. That was
the claim that Lord Oxburgh had failed to register as a relevant
interest in the Register of Lords' Interests his position on the
advisory board of the Real Asset Energy Fund (RAEF). I further
advised Dr Keiller that the offence of misconduct in public
office was a criminal matter and that the correct investigatory
body were the police (appendix B).
2. I wrote to Lord Oxburgh on 10 July 2013 (appendix
C) advising him that I was initiating an investigation on the
basis of the alleged failure to register his position on the RAEF
advisory board.
Key facts
3. Lord Oxburgh initially responded on 10 July 2013
(appendix D). He said that his relationship with the RAEF was
"somewhat nebulous"; that he was approached by a friend
asking if he would be an advisor to it and had accepted; that
he received no letter of appointment nor contract; that he had
received no payment nor request for advice; and that, since attending
a lunch towards the end of 2012, the RAEF had not crossed his
mind and he assumed his relationship with it had lapsed.
4. The RAEF describes itself as "an infrastructure
fund investing in renewable energy power plants already connected
to the grid." Lord Oxburgh was shown on its website as a
member of its advisory board. That webpage included a biographical
note about him, and others involved in the RAEF "Management
Team". The "Corporate Governance" webpage of the
RAEF includes the following description of the advisory board:
"Advisory Board
Composed of 4 well respected figures in the industry
and in the investment community, the purpose of the Advisory Board
is to advise the Board and make non binding recommendations within
the areas of its experience and expertise and to review investment
policies, strategies and transaction of RAEF.
The Advisory Board has the power to do all things
necessary to perform its duties and fulfill its purpose including:
· Make recommendations to the Board regarding
transactions
· Advise on the overall equity allocation
of the fund and suggest strategies to change the deployment assets
· To perform other functions as may be required
by the Board from time to time".
5. On 14 July 2013 Lord Oxburgh forwarded to me an
email he had sent to the chairman of the RAEF (appendix E). In
the email he said he thought it was best that he ended his connection
with the RAEF. He said that, although in reality he thought there
was no conflict of interest with his parliamentary work, it could
reasonably have appeared to others that there was and so for parliamentary
purposes it was a "declarable interest". He asked that
any reference to him be removed from the RAEF website and other
materials.
Findings
6. I am satisfied that Lord Oxburgh's role as an
adviser to the RAEF would be thought by a reasonable member of
the public to be a relevant interest for the purposes of the Code
of Conduct. The responsibilities of the advisory board quoted
above make membership of it akin to the offices and bodies required
to be registered under category 10 of the Guide to the Code of
Conduct (paragraph 79). Accordingly, I am of the view that he
should have registered his membership of the advisory board in
the Register of Lords' Interests and that he breached the Code
of Conduct by not doing so.
7. Lord Oxburgh has been candid and cooperative throughout
my investigation. I am satisfied that the relationship between
him and the RAEF was imprecise. Lord Oxburgh was surprised to
learn that his association with the RAEF had been publicised on
the organisation's website. Lord Oxburgh took prompt action to
disassociate himself from the RAEF (see appendix E) and has demonstrated
a clear desire to uphold the standards of the House and to avoid
any embarrassment. Thus, I was content to agree remedial action
with him. Lord Oxburgh has "put the record straight"
by ending his connection with the RAEF and has written to the
chairman of the Sub-Committee on Lords' Conduct (appendix F) apologising
unreservedly for not being more careful and for giving rise to
the complaint. I suggest that no further action need be taken.
Paul Kernaghan CBE QPM
Commissioner for Standards
Appendix A: Letter from Dr D
Keiller to the Commissioner, 1 July 2013
I am writing to make a complaint against Lord Oxburgh
on the grounds of;
(a) Multiple breaches of the House of Lords (HOL)
Code of Conduct.
(b) Misconduct in a Public office.
From reading the HOL Code of Conduct I believe that
by his actions Lord Oxburgh has breached the following:
General principles
7. In the conduct of their parliamentary duties,
Members of the House shall base their actions on consideration
of the public interest, and shall resolve any conflict between
their personal interest and the public interest at once, and in
favour of the public interest.
Selflessness: Holders
of public office should take decisions solely in terms of the
public interest. They should not do so in order to gain financial
or other material benefits for themselves, their family, or their
friends.
Integrity: Holders of
public office should not place themselves under any financial
or other obligation to outside individuals or organisations that
might influence them in the performance of their official duties.
Objectivity: In carrying
out public business, including making public appointments, awarding
contracts, or recommending individuals for rewards and benefits,
holders of public office should make choices on merit.
Openness: Holders of public
office should be as open as possible about all the decisions and
actions that they take. They should give reasons for their decisions
and restrict information only when the wider public interest clearly
demands.
Honesty: Holders of public
office have a duty to declare any private interests relating to
their public duties and to take steps to resolve any conflicts
arising in a way that protects the public interest.
The test of relevant interest is whether the interest
might be thought by a reasonable member of the public to influence
the way in which a Member of the House of Lords discharges his
or her parliamentary duties: in the case of registration, the
Member's parliamentary duties in general; in the case of declaration,
his or her duties in respect of the particular matter under discussion.
The test of relevant interest is therefore not
whether a Member's actions in Parliament will be influenced by
the interest, but whether a reasonable member of the public might
think that this might be the case. Relevant
interests include both financial and non-financial interests.
In this connection Lord Oxburgh has a number of registered
interests, both financial and nonfinancial:
http://www.parliament.uk/mps-lords-and-offices/standards-and-interests/register-of-lords-interests/?letter=O)
Category 1: Directorships
Non-executive Director, Green Energy Options Ltd
(GEO) (energy monitors to manage domestic energy consumption)
20C Ltd (clean energy)
Category 2: Remunerated employment, office, profession
etc.
Occasional professional advice is given to: Deutschebank;
Evo Electric Ltd (electric motors); Climate Change Capital; Government
of Singapore (higher education; water resources; energy); Fujitsu
(IT services); Geothermal Engineering Ltd; McKinsey & Company
Category 10: Non-financial interests (a)
Director, Global Legislators' Organisation (GLOBE)
Ltd
Category 10: Non-financial interests (e)
President, Carbon Capture & Storage Association
However Lord Oxburgh does not record the fact that
he is also on the advisory board of Real Asset Energy Fund (http://www.raefund.com)
a fund investing in renewable energy power plants.
In opening the Energy Bill debate, Lord Oxburgh stated
"I declare an interest as honorary president of the Carbon
Capture and Storage Association and a director of 20C", whilst
neglecting to mention these other interests listed above.
He then went on to move a series of amendments to
the Energy Bill
(http://www.publications.parliament.uk/pa/bills/lbill/2013-2014/0030/amend/
am030-c.htm) which would require the United Kingdom to adopt a
2030 decarbonisation target and make mandatory the adoption of
a "decarbonisation order" by 2014. (See below. Strikethrough
are clauses Lord Oxburgh asked to be deleted, red inserted clauses).
1. Decarbonisation target range
(1) It is the duty of the Secretary of State
to ensure, in respect of each year in relation to which a decarbonisation
target range is set, that the carbon intensity of electricity
generation in Great Britain is no greater than the maximum permitted
level of the decarbonisation target range.
(2) The Secretary of State may
must by order ("a decarbonisation order") set or
amend a decarbonisation target range
in relation to a year
for the year 2030.
(3) A "decarbonisation target range",
in relation to any year, means a range for the carbon intensity
of electricity generation in Great Britain.
(4) Section 4 makes further provision in relation
to subsection (3).
(5) The earliest year in relation to
which a decarbonisation target range may be set is 2030; and the
first decarbonisation order may not be made before the date on
which the carbon budget for the budgetary period which includes
the year 2030 is set by virtue of the duty of the Secretary of
State under section 4(2)(b) of the Climate Change Act 2008.
(5) A decarbonisation order must be made by 1
April 2014.
(6) A decarbonisation
order The Secretary of State may
amend a decarbonisation target range only if it appears to the
Secretary of State him that significant
changes affecting the basis on which the decarbonisation target
range was set (or previously amended) make it appropriate to do
so.
(6A) When setting or amending a decarbonisation
target range, the Secretary of State must first obtain and take
into account advice from the Committee on Climate Change.
(6B) As soon as is reasonably practicable after
giving advice to the Secretary of State, the Committee on Climate
Change must publish that advice in such a manner as it considers
appropriate.
(6C) If in setting or amending a decarbonisation
target range, the Secretary of State makes provision different
from that recommended by the Committee on Climate Change, the
Secretary of State must publish a statement setting out the reasons
for the decision.
(7) The Secretary of State may not revoke a decarbonisation
order unless, in respect of each year in relation to which the
order sets a decarbonisation target range, a decarbonisation target
range remains in effect.
2. Matters to be taken into account
(1) The following matters must be taken
into account by the Secretary of State in setting or amending
a deoarbonisation target range.
The following matters must be taken into account—
(a) by the Secretary of State in coming to any
decision under this Part relating to decarbonisation target ranges,
and
(b) by the Committee on Climate Change in considering
its advice in relation to any such decisions.
3. Further duties of the Secretary of State
(1) As soon as is reasonably practicable after
a decarbonisation order is made, the Secretary of State must lay
before Parliament a report setting out proposals and policies
for fulfilling the duty in section 1(1).
(1A) If at any time it appears that the proposals
and policies set out in the report in subsection (1) will or may
not achieve the 2030 target, the report shall be amended so as
to achieve the 2030 target.
My belief, which I am convinced would be shared by
"a reasonable member of the public" are that such amendments
are specifically designed to implement legislation in such a way
as to favour "green" or "renewable" energy,
which Lord Oxburgh has clearly vested interests.
It is apparent from the above amendments and Lord
Oxburgh's declared and undeclared interests that he has actively
proposed amendments to the Energy Bill with the specific intention
of benefiting companies with which he has both direct and indirect
financial interests.
The defence that Lord Oxburgh has "declared
an interest" is not sustainable, given the test of "whether
a reasonable member of the public might think that this might
be the case", plus the offence of Misconduct in a Public
Office. The elements of such offence are summarised in Attorney
General's Reference No 3 of 2003 [2004] EWCA Crim 868. Such an
offence is committed when:
· a public officer acting as such
· wilfully neglects to perform his duty
and/or wilfully misconducts himself
· to such a degree as to amount to an abuse
of the public's trust in the office holder
Here the key point is motive:
"… the question has always been, not whether
the act done might, upon full and mature investigation, be found
strictly right, but from what motive it had proceeded; whether
from a dishonest, oppressive, or corrupt motive, under which description,
fear and favour may generally be included, or from mistake or
error …"
Thus whilst Lord Oxburgh may have given the appearance
of acting correctly, by declaring an interest, in fact this has
allowed him to act with impunity to pursue his own dishonest and
selfish interests at the expense of the Public. Hence I allege
that Lord Oxburgh has abused his position in the House of Lords
and the Public's trust for personal financial gain. This constitutes
a breach of the HOL Code of Conduct and Misconduct in a Public
Office.
Any reasonable person would question whether Lord
Oxburgh would receive payments, or be on the boards of these companies,
but for his position in the Lords? At the very least there is
the appearance of corruption and misconduct that is not becoming
for someone in Public Office.
In short I believe the above constitute clear evidence
of both contravention of the HOL Code of Conduct and Misconduct
in a Public Office. Hence I urge you to proceed with an investigation
using all means possible.
Appendix B: Letter from the Commissioner
to Dr Keiller, 10 July 2013
I am writing in response to your letter dated 1 July
2013.
I should at the outset make my terms of reference
clear. My role is limited to investigating alleged breaches of
the House of Lords Code of Conduct. I have no role in respect
of an allegation that an individual may be guilty of misconduct
in a public office. That is an allegation of criminal behaviour
and the correct investigatory body is the police.
Turning to your complaint of breaches of the Code
of Conduct by Lord Oxburgh, I make the following points. Members
of the House of Lords are required to observe the seven general
principles of public life. However, a failure to do so is not
a breach of the Code of Conduct in and of itself. I can and do
take the principles into consideration when investigating alleged
breaches of other sections of the Code of Conduct.
I have conducted a preliminary assessment of your
complaint and currently conclude that only one issue has been
raised which falls within my remit and which justifies investigation.
That is that Lord Oxburgh failed to register as a relevant interest
in the Register of Lords' Interests his position on the advisory
board of the Real Asset Energy Fund. I am initiating an investigation
into that aspect of the complaint and have written to Lord Oxburgh
accordingly.
I have assessed the interests declared by Lord Oxburgh
in his second reading speech on the Energy Bill and in moving
amendments to the Energy Bill at committee stage. I conclude that
he made appropriate declarations on those occasions and so do
not propose to investigate those aspects of the complaint.
I note your comments about Lord Oxburgh's alleged
intention to benefit companies with which he is associated. Paragraph
15 of the Code of Conduct provides that, "Members are not
debarred from participating in proceedings in regard to which
they possess relevant interests, financial or non-financial; but
such interests should be declared fully." It does not appear
that you are arguing that Lord Oxburgh acted as a paid advocate
with a view to conferring exclusive benefit on a company from
which he receives payment or reward.
I am initiating an investigation into the aspect
of the complaint referred to above. If you wish to supply additional
evidence in order to argue that other aspects of your complaint
should be considered you are free to do so.
I draw your attention to the requirement in the Guide
to the Code of Conduct to treat all evidence and correspondence
relating to this complaint as confidential, unless and until it
is published by the Committee for Privileges and Conduct.
Appendix C: Letter from the Commissioner
to Lord Oxburgh, 10 July 2013
I am writing to you in my capacity as the Commissioner
for Standards. I have to advise you that I have received a complaint
against you. The complaint is that you have breached the Code
of Conduct by reason of your failure to register as a relevant
interest on the Register of Lords' Interests being on the advisory
board of the Real Asset Energy Fund.
I attach for your information a copy of the letter
I have received from the complainant (Dr D Keiller).
It appears on the basis of the complaint that you
may have breached the following provisions of the Code of Conduct—
8. Members of the House:
(a) must comply with the Code of Conduct;
(b) should always act on their personal honour;
…
10. In order to assist in openness and accountability
Members shall:
(a) register in the Register of Lords' Interests
all relevant interests, in order to make clear what are the interests
that might reasonably be thought to influence their parliamentary
actions; …
11. The test of relevant interest is whether the
interest might be thought by a reasonable member of the public
to influence the way in which a Member of the House of Lords discharges
his or her parliamentary duties: in the case of registration,
the Member's parliamentary duties in general; in the case of declaration,
his or her duties in respect of the particular matter under discussion.
12. The test of relevant interest is therefore not
whether a Member's actions in Parliament will be influenced by
the interest, but whether a reasonable member of the public might
think that this might be the case. Relevant interests include
both financial and non-financial interests.
13. Members are responsible for ensuring that their
registered interests are accurate and up-to-date. They should
register any change in their relevant interests within one month
of the change.
I also draw your attention to the seven general principles
of conduct identified by the Committee on Standards in Public
Life and incorporated in the Code of Conduct.
I have conducted a preliminary assessment of the
complaint and believe it is appropriate and in the interests of
all concerned that I investigate the allegation that you did not
register being on the advisory board of the Real Asset Energy
Fund. Therefore, I now invite you to respond in writing with a
full and accurate account of the matters in question. A response
by 31 July 2013 would greatly assist me in investigating this
matter in a timely fashion.
Dr Keiller also complains that you did not declare
sufficient interests when speaking on the second reading of the
Energy Bill and in moving amendments to the Energy Bill. I am
not investigating these elements of the complaint, as I consider
that you did make appropriate declarations. I am also not investigating
any suggestion that you engaged in paid advocacy in moving the
amendments, as no evidence has been provided to support such an
allegation. I have explained to the complainant that allegations
of criminal behaviour should be referred to the police. Accordingly,
you do not need to address the matters referred to in this paragraph.
I attach for ease of reference a copy of the Code
of Conduct for Members of the House of Lords and Guide to the
Code of Conduct (second edition: November 2011).
Appendix D: Email from Lord Oxburgh
to the Commissioner, 10 July 2013
Thank you for your message and enclosures. My relationship
to Real Energy Asset Fund is somewhat nebulous. I was approached
last year by an Italian friend who is a director of the fund who
asked if I would be an advisor and I replied in the affirmative.
Since then I have received no contract or letter of appointment,
nor have I received any payment, nor have I been asked for any
advice. I attended a lunch in London given by some of the directors,
from memory towards the end of last year. Since then RAEF has
not crossed my mind, certainly not as an interest, and I assumed
that the relationship was dead. However, a few weeks ago I received
another invitation to lunch that I could not accept.
My inclination is now to tell them that I am no longer
willing to be listed as an adviser—I presume that I must
be named on their website but I could not find it.
I am happy to follow your advice. I am sorry that
you have been bothered with this.
Appendix E: Email from Lord Oxburgh
to the chairman of the Real Asset Energy Fund, 14 July 2013
I regret that I have to write to you as Chairman
of RAEF because inadvertently my association with the company
has become the cause of some Parliamentary embarrassment to me.
I therefore think it best to end my connection with RAEF.
As you know I have had little to do with the company
since agreeing informally some time ago to be an adviser. However,
the fact that I feature clearly on your website (as I now discover)
makes it appear to the world that I am a paid member of an active
panel of advisers while, in reality, I have no written appointment
or contract, have neither been asked for nor offered any advice,
and have neither expected nor received any payment.
Although in reality I think there was no conflict
of interest with my Parliamentary work, it could reasonably have
appeared to others that there was and that for parliamentary purposes
my role with RAEF was a 'declarable interest'. It is now the subject
of a public complaint against me to the Parliamentary authorities.
Under the circumstances I would also be grateful
if, in the interests of clarity, you would ensure that any reference
to me is removed from the RAEF website and any other materials.
I regret having to write to you like this.
Appendix F: Letter from Lord Oxburgh
to the chairman of the Sub-Committee on Lords' Conduct, 17 July
2013
You may be aware that I am the subject of a complaint
to the House authorities concerning an undeclared interest. I
think that according to our rules the complaint is correct.
The failure to declare was inadvertent. Over a year
ago I was approached verbally by an old Italian friend to serve
as an adviser to a new investment fund that he was establishing,
RAEF. I agreed and, although we met socially several times between
then and now, heard nothing more about the proposed role. I had
received no letter of appointment, received no payment and was
asked for no advice. I therefore assumed after a few months that
the idea of my advising had quietly lapsed in the adverse economic
climate and that nothing declarable would arise.
I was therefore shocked to receive notification of
the complaint against me and even more shocked to visit the RAEF
company website and to find myself prominently displayed as a
member of the Advisory Panel to the Fund. I regret that this was
something that I had not done previously but I had had no reason
to do so.
I accept that on the basis of information that had
been published without my knowledge the complaint was justified.
I have now told RAEF that I can no longer be associated with the
company and asked them to remove any reference to me from their
website and other materials.
I apologise unreservedly for not having been more
careful and for my giving rise to this complaint.
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