I am writing to seek guidance from you and, if you consider it appropriate, the Sub-Committee on Lords’ Conduct, on how to proceed with a complaint I have received about Lord Bhatia. The complaint alleges non-registration of a directorship. I consider there to be sufficient evidence to establish a prima facie case that the Code may have been breached so propose to investigate the complaint.
As you know, Lord Bhatia is suspended from the House until 21 December 2016. Paragraph 4 of the Code of Conduct states that the Code does not apply to members who are on leave of absence, suspended or statutorily disqualified. However, the Code and Guide are silent on whether a suspended member may be investigated for alleged misconduct occurring before the member was suspended.
In February 2016 the House agreed a report from the Privileges and Conduct Committee which recommended that the leave of absence scheme should not be used to impede the investigatory process in relation to alleged conduct that occurred when a member was not on leave (4th report, 2015–16, ). Specifically, a member may have a request for leave refused, or a member on leave may have it cancelled with immediate effect, if it is necessary to enable the Commissioner to investigate a complaint. The committee explained that as members on leave expect to participate in the work of the House again in future they should be subject to the investigatory process set out in the Code and Guide.
The same rationale might apply to suspended members. If so, it might be that I should now proceed to investigate the complaint about Lord Bhatia—albeit that if he were found in breach of the Code and if a sanction was considered appropriate it could not apply until he returned to the House. Moreover, it might be fairer on Lord Bhatia for an investigation to take place now rather than him returning to the House to face another investigation immediately. Lord Bhatia’s views on this point could be sought if you thought it appropriate.
On the other hand, there are two potentially material differences between those on leave of absence and suspended members. First, it is a voluntary decision by a member to apply for leave of absence. The recent change was intended to avoid that voluntary option being used to escape investigation. Secondly, it is known when a suspended member will return to the House and therefore when the member again becomes subject to the investigatory process. By contrast leave of absence is ended at a member’s request (subject to the change mentioned above), and may be renewed each Parliament.
The options seem to be (a) for me to investigate Lord Bhatia now; or (b) to wait until he returns to the House in December 2016 before beginning an investigation. I would be grateful for your guidance on which option to pursue.