Direction by the Committee on Standards and Privileges on General Procedures

Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011

Direction by the Committee on Standards and Privileges on General Procedures

In exercise of the power conferred by section 24(2)(a) of the Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011, and Standing Order 69A(3)(c), the Committee on Standards and Privileges gives the following direction to the Northern Ireland Assembly Commissioner for Standards.

1. Citation and commencement

1.1. This direction may be cited as the “Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011 (General Procedures) Direction 2012” and shall come into force on Monday 12 November 2012.

2. Interpretation

2.1. In this Direction –

“the Act” means the Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011;

“Code of Conduct” has the same meaning as in section 17(3) of the Act;

“the Commissioner” means the Northern Ireland Assembly Commissioner for Standards established by section 16 of the Act;

“Commissioner investigation” means an investigation under section 17(1)(b) of the Act;

“the Committee” means the Committee on Standards and Privileges;

“Complaint” means a complaint to the Commissioner that, at a relevant time, a breach of the Code of Conduct has occurred;

“Day” means calendar day;

“Member” means a Member of the Northern Ireland Assembly, and includes a former Member;

“Referral” means a referral to the Commissioner made by the Committee or the Clerk to the Assembly under Standing Order 69A(5);

“Relevant time” has the same meaning as in section 17(3) of the Act.

2.2. The singular includes the plural.

3. Complaints

3.1. The Commissioner may investigate a complaint only where that complaint is admissible.

3.2. Subject to sub-paragraphs 3-7, an admissible complaint must—

(a) be made in writing;

(b) state the name and postal address of the complainant;

(c) name the Member who is the subject of the complaint;

(d) include an allegation that a breach of the Code of Conduct has occurred;

(e) state which part of the Code of Conduct the complainant alleges to have been breached;

(f) be substantiated (i.e. include enough supporting evidence to establish a prima facie case that a breach of the Code of Conduct has occurred);

(g) relate to alleged conduct which falls within the scope of the Code of Conduct; and 

(h) be made within one year from the date when the complainant ought reasonably to have made the complaint.

3.3. The Commissioner must make arrangements to facilitate any complainant who is not able to submit their complaint in writing, for example due to disability or language difficulties.

3.4. If the Commissioner receives a complaint which does not satisfy one or more of the criteria set out at sub-paragraph 2(a)-(f), he or she must issue a written notice informing the complainant of any additional information required to satisfy those criteria.

3.5. If a notice is issued by the Commissioner under sub-paragraph 4, and the complainant fails within 21 days to provide sufficient additional information to render the complaint admissible, the complaint to which that notice relates is not admissible.

3.6. A complaint based on a media report is not substantiated within the meaning of sub-paragraph 2(f), except where the Commissioner decides that the media report itself establishes a prima facie case that a breach of the Code of Conduct has occurred.

3.7. A complaint about a former Member is not admissible unless—

(a) the complaint is made within four weeks of the former Member having ceased to be a Member; and

(b) the Commissioner, having due regard to value for money considerations and the nature of the complaint, believes that it is in the public interest for the complaint to be investigated.

3.8. Where the Commissioner decides that a complaint is trivial or vexatious, or substantially repeats allegations that have previously been investigated (unless there is additional evidence in support of those allegations), he or she may decide that that complaint is not admissible.

3.9. Where the Commissioner decides for any reason that a complaint is not admissible, he or she must write to the Committee enclosing a copy of the complaint and all related papers and giving reasons for his or her decision.

3.10. Where the Committee disagrees with a decision of the Commissioner that a complaint is not admissible, and decides that the complaint is admissible, the Commissioner must be informed of the Committee’s decision and must reconsider the admissibility of the complaint, having due regard to the Committee’s decision (‘reconsideration’).

3.11. On reconsideration—

(a) if the Commissioner decides that the complaint is admissible, the Commissioner must investigate the complaint; or

(b) if the Commissioner again decides that the complaint is not admissible, the Commissioner must write to the Committee and give reasons for that decision.

3.12. A complaint relating to an allegation that a Member has failed to register or declare an interest must be dealt with in accordance with paragraph 8.

3.13. Where the Commissioner decides that a complaint would more appropriately be investigated by the police or such other public body as he or she deems appropriate, he or she must advise the complainant to contact that body. 

4. Referrals

4.1. The Commissioner must investigate a referral in accordance with the terms of reference of the referral.

4.2. Where the terms of reference of a referral are inconsistent with these Directions, those terms of reference are to prevail.

5. Commissioner investigations

5.1. The Commissioner must not—

(a) initiate a Commissioner investigation unless he decides that there is a prima facie case that a breach of the Code of Conduct has occurred;

(b) make generalised or speculative inquiries in relation to Members’ conduct for the purposes of enabling him or her to initiate a Commissioner investigation;

(c) initiate a Commissioner investigation more than one year after the date on which he or she might reasonably have initiated that investigation.

(d) initiate a Commissioner investigation into a former Member  unless that investigation—

(i) is initiated within four weeks of the former Member having ceased to be a Member; and

(ii) the Commissioner, having due regard to value for money considerations and the nature of the breach of the Code of Conduct that the Commissioner believes may have occurred, believes that it is in the public interest for the investigation to be initiated.

6. Investigations: general procedure

6.1. This paragraph applies to an investigation on--

(a) a complaint;

(b) a referral, where the terms of reference of that referral require the Commissioner to form a view whether or not a breach of the Code of Conduct has occurred; and

(c) a Commissioner investigation.

6.2. Sub-paragraphs 3 and 8-13 apply to a referral where the terms of reference of that referral do not require the Commissioner to establish whether or not a breach of the Code of Conduct has occurred.

6.3. The Commissioner must conduct a full and thorough investigation and must at all times act in accordance with the principles of natural justice and fairness. 

6.4. The Commissioner must undertake an investigation with a view to—

(a) establishing all the relevant facts in relation to the potential breach of the Code of Conduct; and

(b) forming a view whether or not a breach of the Code of Conduct has occurred.

6.5. The Commissioner may form a view that a breach of the Code of Conduct has occurred only if he is satisfied on the balance of probabilities that such a breach has occurred.

6.6. Where the Commissioner begins a complaint investigation, he or she  must write to—

(a) the complainant, and inform him or her that an investigation is to be carried out into the complaint;

(b) the Member who is the subject of the complaint, enclosing a copy of the complaint, and inform him or her that an investigation is to be carried out into the complaint; and

(c) the Clerk to the Committee, advising that an admissible complaint has been received and that an investigation is to be carried out; and providing details of the complaint.

6.7. Where the Commissioner begins a Commissioner investigation, he or she must write to—

(a) the Member who is to be the subject of the investigation, informing him or her of the decision to initiate an investigation and providing details of the prima facie case that a breach of the Code of Conduct has occurred; and

(b) the Clerk to the Committee, advising him or her of the decision to initiate an investigation and providing details of the reason for initiating an investigation.

6.8. Before interviewing or requesting any evidence from any person for the first time in the course of an investigation, the Commissioner must notify that person in writing of—

(a) the purpose of the interview or the request;

(b) the powers of the Commissioner to call for witnesses and evidence; and

(c) the procedure to be followed in connection with the investigation.

6.9. When interviewing a person (‘the interviewee’), the Commissioner—

(a) must ensure that a full note of the interview is taken, or that what is said is recorded;

(b) must provide the interviewee with a copy of the note, or as the case may be, recording; 

(c) must allow the interviewee 14 days to suggest any revisions to that note or recording; and

(d) may in his or her discretion accept or reject any revision proposed by the interviewee.

6.10. Where during an investigation the Commissioner decides that a Member’s conduct should be investigated by the police or other public body, the Commissioner may liaise with the police or such other public body as he or she deems appropriate.

6.11. If at any time some or all of the subject matter of an investigation becomes the subject of proceedings by the police or other relevant public body the Commissioner may, and in the case of criminal proceedings must, suspend his or her investigation until those proceedings end.

6.12. If during an investigation the Commissioner uncovers material evidence which is inconsistent with any statement or other representation made by the Member who is the subject of the investigation, the Commissioner must invite the Member to make representations on that inconsistency.

6.13. Before finalising his or her report on an investigation, the Commissioner must provide the Member who is the subject of the investigation with an opportunity to challenge any findings of fact made by the Commissioner.

7. Reports to the Committee

7.1. All reports by the Commissioner to the Committee on a complaint, referrals or Commissioner investigation must set out --

(a) the details of the investigation carried out by the Commissioner;

(b) the facts established by the Commissioner in his investigation, with references to evidence as appropriate;

(c) any findings of fact which are challenged under sub-paragraph 6.13;

(d) any revision proposed by an interviewee in accordance with sub-paragraph 6.9 and rejected by the Commissioner; 

(e) the Commissioner’s reasoned decision, including (except on a referral where sub-paragraph 6.4 does not apply) his or her view as to whether or not a breach of the Code of Conduct has occurred; and

(f) all evidence which has been obtained as part of the Commissioner’s investigation and which has been used by him or her in the consideration of the matter.

7.2. A report by the Commissioner to the Committee on a complaint investigation must also set out the details of the complaint, and the relevant elements of the Code of Conduct to which the complaint relates.

7.3. A report by the Commissioner to the Committee on a referral must also set out the terms of reference of the referral.

7.4. A report by the Commissioner to the Committee on a Commissioner investigation must also set out the reasons for the investigation, including the detail of the prima facie case that a breach of the Code of Conduct has occurred and the relevant elements of the Code of Conduct to which the investigation relates.

7.5. A report made by the Commissioner may also make such recommendations as the Commissioner thinks fit, except that the Commissioner may not include any specific recommendation for the imposition of a sanction.

8. Rectification

8.1. Where an admissible complaint relates to an allegation that a Member has failed to register or declare an interest, and the Commissioner decides that the interest concerned is minor, or that the failure to register or declare an interest may be inadvertent, the Commissioner must seek to resolve the complaint through the procedure set out in this paragraph (‘the rectification procedure’).

8.2. The Commissioner must write to the Member who is the subject of the complaint, indicating that he intends to resolve the complaint by use of the rectification procedure, and requiring the Member to show—

(a) that the interest concerned was minor or that the failure to register or declare that interest was inadvertent; and

(b) that he or she acknowledges the failure and either undertakes to apologise for it or has apologised for it.

8.3. Where, after writing to the Member in accordance with sub-paragraph 2, the Commissioner decides that a complaint may be resolved through the rectification procedure, the Commissioner must write to the Committee—

(a) setting out the details of the complaint, and of the relevant elements of the Code of Conduct to which the complaint relates;

(b) setting out the reasons why the Commissioner is satisfied that the failure was minor or inadvertent;

(c) setting out the evidence that the Member who is the subject of the complaint acknowledges the failure and has either undertaken to apologise for it or has apologised for it; and

(d) recommending rectification.

8.4. Should the Committee decide that the rectification procedure is not appropriate, the Commissioner must be informed of this decision, and he or she may—

(a) investigate the complaint in accordance with paragraph 6; or

(b) decide that the complaint is inadmissible in accordance with sub-paragraph 3.8 (and sub-paragraphs 3.9-3.11 apply to such a decision).

8.5. Where--

(a) the Commissioner at any stage decides that the interest was not minor or that the failure was not inadvertent; or

(b) the Member who is the subject of the complaint does not acknowledge the failure or apologise or undertake to apologise for it

sub-paragraph 3.12 shall cease to apply

9. Complaints or Matters transferred to the Commissioner from the interim Commissioner

9.1. Nothing in this Direction shall effect the operation of section 34 of the Act.

10. Record Keeping

10.1. The Commissioner must keep full and accurate records in respect of the exercise of any of his or her functions, including investigative functions.

10.2. The Commissioner must at the conclusion of each investigation transfer all records of that investigation to the Northern Ireland Assembly Commission. 

Alastair Ross MLA
Chairperson of the Committee on Standards and Privileges

Find Your MLA

tools-map.png

Locate your local MLA

Find MLA

News and Media Centre

tools-media.png

Read press releases, watch live and archived video

Find out more

Follow the Assembly

tools-social.png

Keep up to date with what’s happening at the Assem

Find out more

Contact information

tools-newsletter.png

Contact us for further information about our work.

Contact us