Chapter 4: Principles relating to investigations and outcomes
80.I have now investigated a number of complaints under the revised provisions in the Code for dealing with bullying, harassment and sexual misconduct. In each case I have applied the principles of natural justice, fairness, proportionality, openness, and transparency in reaching decisions as to the appropriate ways to proceed and sanctions to agree or recommend.
Natural justice and fairness
81.The Guide to the Code of Conduct states that:
“In investigating and adjudicating allegations of non-compliance with this Code, the Commissioner and the Conduct Committee shall act in accordance with the principles of natural justice and fairness.” (paragraph 137)
82.How the rules of natural justice apply to the respondent were extensively discussed in a previous investigation and may be consulted in the second report of that investigation.5
83.The requirement of fairness applies to both complainant and respondent, and here I set out how I interpret this principle.
84.I do not give any advantage to one or the other in the investigatory process; for both I offer the same options and conduct interviews in the same way. I seek documentary or third-party corroboration of any disputed evidence and assess the reliability of evidence using the same criteria for both parties, which does not include any assumption that status, power or reputation makes one person’s evidence inherently more reliable than that of someone of lesser status, power or reputation.
85.Where there are points in an investigation where the parties have to agree to a particular proposal, I will take particular care to ensure that agreement is freely given, and for the right reasons.
86.Paragraph 141 of the Guide to the Code says that “Members, and in cases involving bullying, harassment or sexual misconduct the complainant, are given an opportunity to review and, if they so wish, challenge the factual basis of any evidence supplied.”
87.Paragraph 155 of the Guide to the Code sets out the process for this, requiring me to “share with the member a summary of the evidence she has obtained upon which her findings will be founded, so that the member has an opportunity to comment on it. In cases involving bullying, harassment or sexual misconduct, the Commissioner will provide the complainant with the same opportunities to challenge or comment on the evidence.
88.Fairness also requires that where mediation is under consideration at an early stage in the investigation, any response to the complaint by the respondent will be made available to the complainant before mediation takes place, even if no report of the facts has been prepared.
Proportionality
89.The next principle is that of proportionality. This is implicit in the Code and the Guide to the Code, which envisage a range of appropriate outcomes in the event of a breach. Some of these can be recommended by me but must be agreed by the Conduct Committee and imposed by the House. Others can be decided by me with the agreement of the complainant and respondent.
Remedial action
90.A sanction proposed by me and agreed to by the complainant and respondent is referred to as “remedial action”. The Guide to the Code sets out where such an outcome might be proportionate and what it might involve:
“Remedial action may be agreed if the complaint, though justified, is minor and is acknowledged by the member concerned.” (paragraph 146 of the Guide to the Code)
“In cases involving bullying, harassment or sexual misconduct any remedial action recommended at the end of an investigation will need to be agreed by both the member and the complainant and possibly negotiated through mediation. Remedial action in such cases may include the respondent apologising to the complainant or agreeing to attend appropriate training.” (paragraph 148 of the Guide to the Code)
91.“Minor”, in this context, does not mean trivial, and does not imply that the effect on the complainant has been minor. Rather, it acknowledges that in the full range of behaviours covered by the provisions, the behaviour complained of is at the lower end of the range.
92.In considering whether to agree to deal with a matter by remedial action, the consent of both complainant and respondent is required. Although this is necessary, it is not sufficient; I also have to decide that it is a proportionate response.
93.If the respondent is the subject of complaints relating to conduct similar to that previously dealt with by remedial action, I would take into account this apparent lack of modification in his or her conduct when considering whether further remedial action would be appropriate.
Sanctions imposed by the House
94.Some sanctions can only be imposed by the House: suspension, denial of access to services and expulsion. These are the more severe sanctions available and would be used where the behaviour complained of was at the higher end of the range.
95.It may also be necessary to resort to a sanction imposed by the House for less severe breaches if remedial action, even if considered proportionate by me, cannot be agreed by the parties or is not proportionate as it has proven to be ineffective in the past.
Agreed resolution
96.The Guide to the Code of Conduct also provides for an outcome prior to any finding by “agreed resolution”:
“At any time during an investigation involving bullying, harassment or sexual misconduct the Commissioner may reach an agreed resolution with both the complainant and the member under investigation. At the Commissioner’s discretion, such an agreed resolution can bring the investigation to an end. In this case, it is at the discretion of the Commissioner, having consulted the complainant and the member, whether a report is published on her webpages on the parliamentary website.” (paragraph 151)
97.This outcome differs from remedial action in that:
- No finding is reached;
- No sanction is imposed (though the parties may agree to some action as part of the agreement); and
- A report is not necessarily published. If no report is published, the existence of the complaint and investigation will remain confidential indefinitely.
98.The Guide to the Code does not stipulate when this course of action might be suitable but I would expect it to be the exception rather than the norm, and would expect it only to apply as a result of the particular circumstances of the case.
99.Two factors to which I would anticipate paying particular attention when considering a request for an agreed resolution would be the motivation behind any such request and the need for the enforcement of the Code of Conduct to be as open and transparent as possible.
100.In particular, I would want to be sure that a complainant was choosing an agreed resolution in his or her own interests, rather than those of the respondent, and that a respondent who disputed the accuracy of the complainant’s account was not agreeing to this outcome simply to avoid publicity.
Openness and transparency
101.The principle of openness and transparency may be relevant when considering proportionality.
102.If I, or the Conduct Committee, uphold a complaint, the Code requires that a report is published, naming the respondent.
103.Publication is not a sanction, but the effect of publication is, in my view, a matter that I can take into account when considering the proportionality of any sanction I may impose, as publicity may itself be a very effective catalyst for change in the respondent’s behaviour.
104.The educative benefits of openness and transparency require me in most, if not all, cases to publish in my report significant details of the respondent’s agreed and alleged behaviour, and its effects on the complainant. This is the case even though the respondent may be deeply embarrassed at the descriptions of the behaviour, and the effects of the behaviour on the complainant, being made public. Publishing the details allows readers to assess whether their own behaviour requires modification to avoid the possibility of a complaint being made and upheld, and allows readers who may have been affected by similar or equivalent behaviour to recognise that they have a remedy. Both these effects, over time, should improve the working environment of the House of Lords.
5 Committee for Privileges and Conduct, Further report on the conduct of Lord Lester of Herne Hill (3rd Report, Session 2017–19, HL Paper 252)