Mr Kernaghan concluded that the ICGS is necessary and is making a positive difference in its ability to hold people to account for unacceptable behaviour. The review makes recommendations for its future, including to improve the timeliness, quality, confidentiality and transparency of investigations.
Our submissions to the review noted that the complaints process is too slow and that, even in cases of limited scope, can take longer than a substantial civil litigation action or criminal investigation. Naturally, the delay and uncertainty during the process is difficult for all parties. We suggested the implementation of a more formal timetable for processing complaints. We are pleased that the report recognises that there are issues. Whilst noting that the time taken to complete investigations reduced in the year 2022/23, it made recommendations to improve timeliness and ensure that complaints stay under review.
It is encouraging that the ICGS informed the review that it has recently drawn up a draft Case Management and Review Process, which we hope may go some way to addressing the issue of delay by introducing a more formal structure. However, in our view, there still remain key points that need to be addressed and plenty of room for improvement. Investigations still take an average of 184 days to complete, which is too long for complaints which are not factually complex. In addition in order to narrow the dispute there is a recommendation that the scope of submissions made by respondents be limited (Recommendation 9). Whilst steps to improve timeliness should be generally encouraged, these should not be taken at the expense of the parties’ right to put their case forward.
Currently, complaints are treated as strictly confidential (with exceptions for parties to talk to certain parties such as nominated trusted persons, legal advisors or unions/advisors) and the confidentiality requirement is indefinite. The report recommends that where a complaint is not accepted then there is no obligation of confidentiality (Recommendation 11). This means that those complaints which are not worthy of investigation will not be subject to confidentiality and ironically it will be easier for there to be reports of these complaints. Complaints worthy of investigation will remain bound in confidence. Whether this was an intended consequence, it flies in the face of both civil and criminal procedure and could leave MPs battling with the media to maintain their privacy and reputation rights.
An issue not addressed in the recent report is that of limitation or, in other words, the permissible time period for making a complaint after an alleged incident. The reasoning for the ICGS not excluding historic complaints of sexual misconduct is that victims often come forward later. However, this approach does not take account of the impact delay can have on the ability to investigate properly. It is often much harder to gather evidence after a prolonged period. The more sensible approach would be to set a limitation period which would still allow for complaints of serious misconduct to be referred to the police (an authority with far greater powers for evidence gathering than the ICGS).
This is now the third review of the ICGS since 2018 and we anticipate that it will not be the last. The recommendations are a welcome step in the right direction. We hope that future reports will bolster the efficacy of the ICGS with further recommendations, particularly in respect of confidentiality and limitation. However there is still work to do in relation to improving the process for all involved in an ICGS investigation.
For further information, please contact Partners; Mark Jones and Hanna Basha or Nick Grant or, alternatively, telephone on 020 7465 4300
