Conduct of Lord Oxburgh - Committee for Privileges and Conduct Contents


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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