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Independent Investigations: lessons from the Bercow Report    

08.04.22

John Bercow, the former Speaker of the House of Commons, was found by the Parliamentary Commissioner for Standards (“the Commissioner”) to have breached the Bullying and Harassment Policy for the UK Parliament. He appealed. The appeal was considered by a Panel (“the Panel”) chaired by Rt Hon Sir Stephen Irwin (formerly Irwin LJ). It dismissed his appeal. It characterised Mr Bercow as a “serial bully” and a liar.

The Panel’s report is an interesting read not just because it brings to light longstanding behaviour by someone in a position of power who had vigorously denied any wrongdoing. It also highlights a number of themes common in internal investigations, particularly those into alleged workplace bullying.

Lapse of time

Mr Bercow complained that the complaints were historic, and that it was unfair and unjust for him to have to respond to them. The Panel noted that no specific video, email, text or documentary evidence had been identified that would otherwise have existed but did not because of the passage of time. It also pointed out that Mr Bercow claimed to recall most if not all of the events referred to in the allegations. He was able to respond “in great detail and at considerable length”. The Panel concluded that there was no unfair disadvantage as result of the allegations being historic.

Reasons for lapse of time

It is always relevant to consider why historic allegations were not raised earlier. Mr Bercow alleged that the complainants’ failure to raise their allegations earlier indicated that they were fabricated. The Panel rejected that conclusion for a number of reasons, including the fact that there was no adequate grievance procedure at the time of the incidents. This emphasises the (perhaps obvious)  importance of organisations having well publicised grievance procedures so that complaints can be raised timeously. It is particularly important that vulnerable workers feel able to raise complaints against more senior and powerful people within an organisation.

Collusion

The Panel rejected Mr Bercow’s suggestion that the complainants had colluded (in the sense of collaborated to create or reproduce false allegations or to dovetail their account of events). It did so in part because of differences in detail in the allegations and the fact that an analysis of the chronology indicated that there was a “stuttering process by which the complainants made their complaints rather than a coordinated sequence of events”. There was a “degree of contact and some degree of coordination” between the complainants but no clear evidence of collusion.

Cross examination

The Panel rejected Mr Bercow’s contention that the process was flawed because he had not been able to cross examine witnesses. It observed that cross-examination is rarely a feature of workplace disciplinary processes  which are inquisitorial rather than adversarial. A respondent ought to be given the opportunity to challenge other evidence and make submissions about it, and any decision ought to be made on the basis of evidence collected, but parties cannot normally expect to be able to cross examine other witnesses.

Contemporaneous notes

One of the complainants had made what were claimed to be contemporaneous “short form” notes which he relied upon as corroborating his allegations. Mr Bercow claimed that they were unreliable: “it is an unsustainable conclusion to determine that Post-it notes attached to the complainant’s notes must have been made contemporaneously with those notes, despite the lack of any dates and the clear possibility that they were added later”. The Panel disagreed and upheld the Commissioner’s view that the notes were reliable. In doing so it held that Mr Bercow had “lied extensively to try to avoid the thrust of these allegations”.

Conclusion

The allegations against Mr Bercow were classic examples of workplace bullying : angry episodes accompanied by abuse coupled with undermining and isolating behaviour causing stress and anxiety. The Panel concluded that the relevant Bullying and Harassment Policy had been breached “repeatedly and extensively by the most senior Member of the House of Commons”. Investigating such allegations is often complex, particularly where – as with Mr Bercow – they are aggressively denied. The Panel’s review of the Commissioner’s decision – which can be found here [hc-1189—the-conduct-of-mr-john-bercow.pdf (parliament.uk)] – and the conclusions set out in its report provides a gratifying example of a serial bully being exposed.

 

Daniel Tatton Brown QC is regularly instructed to conduct sensitive, complex workplace investigations, often involving senior executives.

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