Commentary on Sections Assessment of admissibility of complaints
110.Section 23 provides for a three part test for admissibility. Subsection (1) explains that a complaint is admissible if it appears to the Commissioner that the complaint:
111.Subsection (2) states that a complaint is relevant if it appears at first sight – i.e. on its face - to be about a person who may in the future be, or may currently be, or may previously have been, engaged in regulated lobbying and that if all or part of the conduct complained about is established, it might amount to a failure to comply with a requirement mentioned in section 22(1)(a) to (d).
112.Subsection (3) sets out a number of conditions - largely procedural in nature - that require to be met before a complaint will be admissible, including that the complaint must be in writing, must be made by an identifiable individual (rather than in the name of another person such as a company) and made before the end of the period of one year beginning on the date when the complainant could reasonably have become aware of the conduct complained about.
113.Subsection (4) provides that a complaint warrants further investigation if there is sufficient evidence to suggest that the person who is the subject of the complaint may have failed to comply with a requirement mentioned in section 22(1)(a) to (d).
114.Section 24 sets out the procedure for assessing admissibility of a complaint. Subsection (2) provides that when the Commissioner receives a complaint that a person has or might have failed to comply with a requirement mentioned in section 22(1)(a) to (d), the Commissioner must notify the person who is the subject of the complaint that the complaint has been received, inform that person of the nature of the complaint and, except where the Commissioner considers that it would not be appropriate to do so (e.g. where the complainant might be vulnerable or where to do so could prejudice an investigation), inform that person of the name of the individual who made the complaint.
115.Subsection (3) focusses on the first part of the test for admissibility – whether the complaint is relevant. It provides that if the Commissioner considers that the complaint is not relevant, the Commissioner must dismiss it.
116.Subsections (4) to (7) focus on the second part of the test for admissibility – whether the conditions in section 23(3) are met. In particular provision is made in subsections (5) to (7) for where a relevant complaint fails to meet one or more of the conditions mentioned in section 23(3).
117.Subsection (5)(a) provides that if the complaint is of a kind specified in a direction by the Parliament, the Commissioner must make a report to the Parliament (before the Commissioner considers the third part of the test for admissibility (i.e. whether the complaint warrants further investigation)). Subsection 5(b) provides that if the complaint is not of such a kind the Commissioner will consider whether the complaint warrants further investigation and, if it does, will report to the Parliament. Subsection 5(c) deals with other cases, i.e. where the complaint is not of a kind specified in a direction by the Parliament and where the Commissioner considers that the complaint does not warrant further investigation, in which case the Commissioner will dismiss the complaint.
118.Subsection (6) sets out the information which a report under subsection (5)(a) or (b) must contain. Subsection (7) provides that after receiving a report under subsection (5)(a) or (b) the Parliament must give the Commissioner a direction to dismiss the complaint for failing to meet one or more of the conditions in section 23(3) or to treat the complaint as if it meets all of those conditions. If the direction is to treat the complaint as if it meets all the conditions and is issued in response to a report under subsection (5)(a), the Commissioner will then require to consider the third part of the test for admissibility – whether the complaint warrants further investigation.
119.Subsection (8) provides that if the Commissioner considers that the complaint is admissible (in accordance with the three part test, i.e. as (a) relevant, (b) meeting all of the conditions in section 23(3) (or having been directed by the Parliament under subsection (7)(b) to treat the complaint as meeting all of those conditions) and (c) warranting further investigation), the Commissioner must inform all of the Parliament (by making a report to the Parliament), the individual who made the complaint and the person who is the subject of the complaint.
120.Subsection (9) deals with the situation where the Commissioner considers a complaint is inadmissible and has not already dismissed it under or in pursuance of other provision in section 24 (i.e. subsections (3), (5)(a) or (7)(a)). This will be the case where the Commissioner considers that a relevant complaint which meets the conditions in section 23(3) does not warrant further investigation or where following a report to the Parliament on a relevant complaint under subsection (5)(a) the Parliament directs the Commissioner to treat the complaint as if the section 23(3) conditions are met but the Commissioner then determines that the complaint does not warrant further investigation. The Commissioner is to dismiss the complaint.
121.Subsection (10) provides that, in dismissing a complaint, the Commissioner must inform the individual who made the complaint and the person who is the subject of the complaint of the dismissal together with the reasons why the complaint is inadmissible.
122.Subsection (11) confirms that subsections (2), (8) and (10) apply only to the extent that they are capable of applying where the person to whom the complaint relates has not been named in the complaint or the individual who made the complaint is anonymous.
123.Subsection (12) provides that if the Commissioner has not assessed whether a complaint is admissible within 2 months of receiving the complaint, the Commissioner must, as soon as possible thereafter, make a report to the Parliament on the progress of the assessment of admissibility.