Commissioner for Standards - Statement.

STATES OF JERSEY

COMMISSIONER FOR STANDARDS - STATEMENT

Presented to the States on 4th April 2023 by the Privileges and Procedures Committee

STATES GREFFE

2023  R.49

REPORT

In accordance with the provisions of the Commissioner for Standards (Jersey) Law 2017, the Privileges and Procedures Committee is required to present the Commissioner for Standards' statement to the States Assembly. The statement sets out the manner in which the Commissioner proposes to discharge her functions under the Law. The statement can be found in appendix 1.

Commissioner for Standards Statement  Commissioner for Standards, States of Jersey

1. The Commissioner for Standards investigates complaints of alleged breaches of the Code  of  Conduct  for  Elected  Members  ("the  Code")  (Appendix  1).  The Commissioner considers complaints made by third parties and can also initiate her own investigation if she believes that, at a relevant time, a breach of the Code may have occurred. A member can also request that their own behaviour is investigated by the Commissioner to establish whether there has been a breach of the Code of Conduct.

Complaints

2. Whether the complainant is a member of the public or a member of the States, they may wish to consider whether it may be useful, in the first instance, to try to resolve their complaint informally where appropriate.
3. Any complaint alleging that a member of the States has breached the Code must be made in writing to the Commissioner via one of the following means:

Email: commissionerforstandards@gov.je Website: TBC

Postal Address:

Pan-Island Commissioner for Standards, Channel Islands c/o States Greffe

Morier House

Halkett Place

St Helier Jersey JE1 1DD  

4. In order for a complaint to be considered it should:

1. be made in writing;
2. state the name of the complainant;
3. state the email, telephone and postal address of the complainant (unless the complainant is a current member);
4. name the person who is the subject of the complaint;
5. state the acts or omissions of the member complained of which are alleged to have breached the Code;

6. state the provision or provisions of the Code which each act or omission is alleged to have breached;
7. in relation to each act or omission complained of, be substantiated by sufficient evidence to satisfy the Commissioner that there is a prima facie case that a breach of Code has occurred and that the complaint is not frivolous or vexatious or otherwise an abuse of the complaints process;
8. refer to an alleged breach of the Code which occurred on or after 24 July 2016 in accordance with Section 9(2) of the Commissioner for Standards (Jersey) Law 2017; and
9. relate to alleged conduct which falls within the scope of the Code

5. The Commissioner has the discretion to consider a complaint even where one or more of the above haven't been met.

Preliminary Assessment

6. The Commissioner will conduct a preliminary assessment of all complaints. The Commissioner cannot consider complaints that fall outside the scope of the Code of Conduct or complaints which she deems frivolous or vexatious. She will not consider complaints that substantially repeat allegations which have already been the subject of consideration (unless there is fresh evidence in their support).
7. The Commissioner will  not, without good reason, consider either anonymous complaints or complaints where the complainant is not prepared to have his or her name and complaint disclosed to the member complained about. The complainant's details will be included in all correspondence including any report submitted to the Privileges and Procedures Committee ("the PPC") with the exception of complaints that relate to unacceptable behaviours (see para 10).
8. Matters falling within the Commissioner's remit include:

1. failure to adhere to the requirements of the Code;
2. failure to register relevant interests (see Appendix 2);
3. failure to declare relevant interests in the course of parliamentary business including committee and scrutiny panel proceedings; and
4. unacceptable behaviour including bullying, harassment, sexual harassment and victimisation (paragraph 5 of the Code)

9. Matters not falling within the Commissioner's remit include:

1. policy matters or a member's political views or opinions;
2. service or performance standards or outcomes received;
3. alleged breaches of the separate code governing the conduct of ministers and assistant ministers acting in their official capacities (the Commissioner will publish a separate statement in relation to the Code of Conduct and Practice for Ministers and Assistant Ministers);
4. a complaint from a person who is not a member of the States regarding words spoken by, or actions of, an elected member during a meeting of the States;
5. a complaint about a former member of the States.

Complaints Relating to Unacceptable Behaviour

10. The Commissioner will consider complaints relating to unacceptable behaviour including bullying, harassment, sexual harassment, intimidation and victimisation. Complaints relating to unacceptable behaviour fall within the scope of paragraph 5 of the Code of Conduct. (Appendix 1)
11. Unacceptable behaviour can be defined as "Any form of unwanted, unreasonable and offensive conduct that has the purpose or effect of violating a person's dignity and  creating  an  intimidating,  hostile,  degrading,  humiliating  or  offensive environment. Conduct shall be regarded as having this effect only if, having regard to all circumstances and in particular the complainant's perception, it should reasonably be considered as having that effect.
12. Complaints relating to bullying, harassment, sexual harassment, intimidation and victimisation are intended to address such behaviour or conduct whether it occurs in person or remotely, for example by email, phone, text or through social media. Such behaviour or conduct may occur in a single and isolated serious incident or in multiple incidents occurring over a period of time.
13. Members have a right to freedom of expression and this includes disagreements on issues and policy which are a normal part of the political process.
14. Due to the sensitive nature of complaints relating to unacceptable behaviour, the Commissioner will not normally disclose the complainant's name and details in the final report relating to any such investigation.
15. The Commissioner encourages anyone who feels they are being or have been subject to unacceptable behaviour to consider the use of the informal approach to resolve their complaint in the first instance. However, this is not a requirement prior to submitting a formal complaint.

Discontinuation of a Complaint

16. The Commissioner may discontinue consideration of a complaint if at any time she is satisfied that a complaint:

1. is frivolous or vexatious or otherwise an abuse of the complaints process;
2. the complainant has, without reasonable excuse, failed to co-operate with the Commissioner;
3. the  alleged  conduct  is  not  sufficiently  serious  to  justify  further consideration;
4. the complainant no longer insists upon the complaint;
5. the complaint would more appropriately be investigated by the police or other public body;
6. it is not in the public interest to proceed with the consideration of the complaint; or
7. if a member is under investigation when the member leaves the States, the investigation terminates at that point.

Investigation: Procedural Safeguards  

17. The Commissioner will make arrangements to facilitate any complainant who is not able to submit their complaint in writing, for example due to disability or language difficulties.
18. Confidentiality is vital for all of those involved in a complaints process. In addition to the person raising a complaint, this is equally important for the person against whom an allegation of any sort has been made. Elected Members, as public figures, are likely to be concerned that an allegation might be repeated in public and attributed to them, when the matter remains under investigation and has not been upheld. Therefore, in the interests of fairness for all involved, any complaint submitted to the Commissioner must remain private and confidential from the point of submission until the complaint has been finally determined, unless disclosure is authorised (for example if a member is the complainant and needs to declare an interest such as the fact of a complaint submitted to the Commissioner).
19. Information  collated  in  relation  to  complaints  will  be  held  and  managed  in accordance with the Data Protection Act 2018 and Data Protection principles.
20. The police and other agencies investigate allegations of criminal misconduct and the Commissioner will not investigate any related allegation of a breach of the code while the agency is conducting its own investigation. The same suspension of investigation  applies  while  related  proceedings  (for  instance  and  action  for defamation) are before a court of law.
21. Where during an investigation the Commissioner decides that the conduct of a member of the States should be investigated by the police or other public body, the Commissioner may liaise with the police or such other public body as they deem appropriate.
22. In investigating and adjudicating allegations of non-compliance with the Code, the Commissioner and the Privileges and Procedures Committee (PPC) shall act in accordance with the principles of natural justice and fairness.
23. Proceedings are not adversarial, but inquisitorial in nature. The Commissioner is an independent and impartial investigator appointed by the States, whose task is to establish the facts of a case. She reports these, along with her conclusions as to whether or not there has been a breach of the Code, to the PPC.
24. The member has a right of appeal from the Commissioner and the PPC to the States. The complainant has no right of appeal.
25. Members are expected to co-operate with any investigation into their conduct. Requested written evidence from members must be in their own name; letters sent on their behalf by legal advisers or others will be disregarded. Members may be accompanied to any meeting or interview by a colleague, friend or legal adviser. However, every effort is made to keep proceedings informal and there is no expectation that they should be so accompanied. If members choose to bring a colleague, friend or adviser, they are free to consult him or her off the record but

will be expected to answer for themselves (and not through the friend or adviser) any questions put to them.

26. The complainant has no formal locus once an investigation is under way and has no right to be called as a witness. The complainant is expected to co-operate with any investigation and to supply all evidence in his or her possession when asked to do so.
27. Members  accused  of  misconduct  have  no  entitlement  to  cross-examine complainants, though they are given an opportunity to review and, if they so wish, challenge the factual basis of any evidence supplied by complainants or others.
28. The civil standard of proof is adopted at all stages in the investigation process by both the Commissioner and the PPC. Therefore, in order to find against a member, the Commissioner needs to be satisfied that the allegation is proven on the balance of probabilities.

Confidentiality

29. From the point that the Commissioner receives a complaint, all evidence and correspondence relating directly to the inquiry must remain confidential unless and until it is published by the PPC.

Investigations: General Procedure

30. On receipt of a complaint, the Commissioner will write to the complainant at the earliest opportunity to acknowledge receipt of their complaint. The Commissioner will inform the member concerned of the complaint and provide a copy of the complaint and any evidence offered in support of it. She will set out the particular provisions of the Code of Conduct that appear, either on the basis of the complaint or her preliminary assessment of the facts, to have been breached, and at the same time will invite the member to respond in writing with a full and accurate account of the matters in question.
31. Following her preliminary assessment, the Commissioner will inform both the complainant and the member concerned whether or not she will investigate the complaint. If she has decided that the complaint does not merit investigation, she will provide the complainant and the member concerned with a brief explanation of her reason for dismissing the complaint.
32. Alternatively, the Commissioner may decide to agree remedial action with the member. Remedial action may be agreed if the complaint, though justified, is minor and is acknowledged by the member concerned. Remedial action involves "putting the record straight", for instance by making an amendment to the Register of Interests of Elected Members. The member will normally be expected to make a formal apology, either in writing or by means of a formal statement to the States. If the Commissioner and member agree remedial action, the Commissioner will report the matter and remedial action direct to the PPC. The Commissioner will inform the complainant of the action taken in response to the complaint.

33. If remedial action is not appropriate in the circumstances, and the member's written response  is  not  sufficient  to  enable  the  Commissioner  either  to  dismiss  the complaint or agree remedial action, the Commissioner may pursue an investigation. This can include seeking further information, either from the member concerned or others, including the original complainant, third parties, or public or private bodies. Such information may be sought in writing or the Commissioner may decide to interview witnesses either informally or by means of formal oral evidence. The Commissioner holds her meetings with witnesses in private. In the case of informal interviews, a note will be made of the meeting and all parties will subsequently be asked to confirm its accuracy. In the case of formal oral evidence, a recording and full transcript will be made. The PPC decides to what extent the evidence is published.
34. The Commissioner has the power as per Section 13 of the Commissioner for Standards (Jersey) Law 2017 to summons people to appear and to provide records.
35. Sections 14, 15, and 16 of the Commissioner for Standards (Jersey) Law 2017 set out the criminal offences and related penalties arising from any failure to assist the Commissioner in the discharge of her functions. Section 17 sets out the relevant personal and professional privilege protections which apply.

Assessing the evidence

36. If the Commissioner's investigation has uncovered material evidence that is at variance with the member's version of events, she will put this to the member, who will have the chance to challenge it. Before finalising her report, the Commissioner will share with the member a draft of her findings of fact and provide the member an  opportunity  to  comment.  The  Commissioner  may  also  share  with  the complainant a draft of her findings of fact on a confidential basis, where the Commissioner considers it is appropriate in the circumstances to do so.
37. If, having considered the member's comments, the Commissioner considers that there remain significant contested issues of fact, she will prepare her own account of the facts of the case, while drawing the attention of the PPC to those points which are contested.
38. The Commissioner usually reports her findings in the following form:

1. summary of the initial complaint and of the relevant elements of the Code of Conduct;
2. brief account of the key facts in the case, with reference to evidence as appropriate, and with any contested points of fact highlighted;
3. her findings with reasons as to whether or not the Code of Conduct has been breached and any evidence, written and oral;
4. a recommendation as to what action, if any, should be taken

 2nd April 2023  

Dr Melissa McCullough  

Pan-Island Commissioner for Standards  

 Appendix 1: Code of Conduct for Elected Members

Appendix 2: Register of Interests of Elected Members