Guidance

Steering board review of UK NCP procedures

Updated 1 September 2022

The steering board review of UK NCP procedures (‘procedural review’) identifies procedural errors in the NCP process in dealing with complaints brought under the OECD Guidelines for Multinational Enterprises (‘the Guidelines’). This ensures the UK NCP rules of procedures are kept.

As set out in the Guidelines, NCPs operate in accordance with core criteria of visibility, accessibility, transparency and accountability. The procedural review works in part to further this. This guidance explains the procedural review in more detail, including the remit of different roles within the process as well as the outcomes of a review.

1. Overview

1.1. A procedural review

1.1.1. A procedural review is an opportunity for parties to ask the UK NCP steering board whether they consider the UK NCP to have followed the correct UK NCP published procedure, in coming to a final decision, or failed to treat the parties with appropriate fairness.

1.2. Who can request a procedural review

1.2.1. A procedural review may only be requested by a party to the complaint.

1.3. When to request a review

1.3.1. A review can only be requested where one of the following apply:

• the UK NCP has made a final decision to not accept a complaint following its initial assessment

• the UK NCP has concluded its consideration of the further examination and is ready to publish the final statement

1.4. Requesting a procedural review

1.4.1. When the UK NCP sends its final draft of an initial assessment decision or final statement it will include information on how to request a procedural review. The request must be in writing to the steering board secretariat and should be short and succinct. The request should say which initial assessment or final statement is involved and state why and how the submitter considers the UK NCP has not followed its UK NCP published procedure.

1.5. Scope of the procedural review

1.5.1. A procedural review can only deal with procedural errors and will not examine the substance of the UK NCP decision.

1.5.2. However, the steering board’s conclusions on their procedural review may relate to the substance of a complaint if the UK NCP has failed to follow its own procedures in coming to a decision. For instance, if a party believes the UK NCP did not take into consideration evidence which may mean the conclusion itself was incorrect.

1.6. Reasons for a procedural review

1.6.1. A party to the complaint might want the steering board to consider whether the UK NCP, in examining the complaint, has failed to comply with the UK NCP published procedure. Examples of such failure might be, but not limited to:

• failure to issue a final statement in accordance with the timetable set out in the published procedure

• failure by the NCP to give either party an appropriate opportunity to be heard

• failure to meet either parties’ reasonable requirements in relation to the treatment of confidential or sensitive information

1.6.2 The steering board may consider whether the NCP failed to treat either party to the complaint with appropriate fairness in the circumstances of the case. Appropriate fairness is intended to cover what is sometimes called ‘rules of natural justice’. In this context ‘rules of natural justice’ means:

• judgement without bias: the decision is based on evidence

• fair hearing: there is an opportunity to prepare and present evidence, and to respond to arguments presented by the opposing side

2. Roles, responsibilities, and remits

2.1. The role of the steering board

2.1.1. The steering board acts as an oversight body for the NCP. More about the NCP steering board.

2.1.2. To process a procedural review, members of the steering board volunteer to form a temporary review committee.

2.1.3. Each board member has a designated alternate. To maintain impartiality and timely processing of a procedural review, alternates may take part in a review committee.

2.1.4. The steering board has responsibility for considering the decision which the temporary review committee comes to and its conclusions and recommendations will only be finalised subject to their agreement.

2.2. The role of the review committee

2.2.1. The review committee is temporarily formed by 3 members of the steering board.

2.2.2. The review committee’s role is to consider the procedural review request and make conclusions and recommendations to the steering board.

2.2.3. The review committee should identify a lead writer of the final report which is submitted to the steering board.

2.3. Impartiality of the steering board and review committee

2.3.1. Board members involved in a procedural review must be impartial. They should fulfil their capacity in the review committee as an independent steering board member, detached from any departmental or third-party representation role they might have.

2.3.2. Board members will notify the secretariat of any material interest in the complaint and declare any conflict of interest.

2.3.3. Any board member who has a conflict of interest may choose to a) not participate in the review committee and/or b) withdraw from the procedural review process entirely. If the board member is aware of a material interest, but does not consider it to be a conflict of interest, they should ask the steering board secretariat to inform the parties to the complaint of the nature of that interest and ask if they have any objection to them taking part in the process. If any party objects, that member will not take part in the procedural review process. If the parties do not object, the conflict of interest can be reviewed by the chair of the NCP steering board.

2.3.4. A board member will not be considered to have a conflict of interest where they have been consulted by a party about the NCP complaint process so long as this does not involve advice on the substance of the complaint or preparation of submissions

2.4. The role of the UK NCP secretariat

2.4.1. The secretariat notifies members of the likely timetable for a procedural review and finds out which members are available during that time.

2.4.2. The secretariat facilitates meetings and correspondence between the members of the review committee.

2.4.3. The secretariat circulates all relevant information received from and between the UK NCP, parties, and review committee.

2.5. The role of the UK NCP

2.5.1. The steering board’s procedural review process is integral to the UK NCP’s commitment to continuous improvement. The UK NCP is committed to participating in the process in a transparent way and open to learning from the steering board’s conclusions and recommendations.

2.5.2. The UK NCP will provide comment in writing on the review request and will provide any background information to assist the steering board in doing the review.

2.5.3. The UK NCP comments may acknowledge that there have been errors in the procedure identified by the request for a procedural review and include recommendations for how that might be addressed.

2.5.4. The UK NCP will play no other part in the procedural review until its conclusion.

2.5.5. The UK NCP will act on the steering board’s recommendation and provide an update to the steering board on its actions.

3. Steering board procedural review action list

Below is an outline of the actions which usually take place as part of the steering board procedural review process.

3.1. Duration of the process

3.1.1. The steering board will aim to commence the process within 3 months from the time a procedural review request has been made to the UK NCP secretariat. However, delays can arise in more complex cases or due to the availability of steering board members. There is a commitment throughout the procedural review to ensure transparency, which will include any updates to parties regarding timings.

3.1.2 List of steps in the process

Step	Lead	Action
1.	UK NCP	Alongside the final initial assessment or final statement, the UK NCP will send information on how to request a steering board review to the parties.
2.	Party	Parties have up to 10 working days from when they receive the final initial assessment or final statement to write to the steering board secretariat, via UKNCP.Secretariat@trade.gov.uk, to request a review.
3.	UK NCP	If a request for a procedural review is received within the 10-day deadline the publication of the final initial assessment or final statement will be paused until the procedural review is finished.
4.	Secretariat	Once the request for a procedural review is received the secretariat will acknowledge receipt and ask for full details.
5.	Secretariat	The secretariat will ask steering board members to volunteer to take part in the review committee. All steering board members must declare any interest or involvement they may have with the complaint.
6.	Party	Parties have a further 10 days to provide full written detail of why they think the NCP has deviated from the published procedure or how they have not been treated with appropriate fairness.
7.	Secretariat	The secretariat will circulate copies of the documentation from the party alongside the corresponding final initial assessment or final statement to the steering board, the other party to the complaint, and the UK NCP.
8.	Steering board	The steering board will nominate a review committee, which will have at least 3 members and may include steering board members’ alternates.
9.	Secretariat	The secretariat may share additional documents with the review committee, such as examples of historical procedural review, to support them in the process.
10.	Review committee	The review committee can determine how it will manage the process, for example how best to consider the information they have been provided and how to prepare their recommendation. It is suggested that all the review committee nominates a lead.
11.	UK NCP	On request of the secretariat, the UK NCP will provide comment in writing and will provide any background information to assist the review committee in doing the review.
12.	Secretariat	The secretariat will circulate the NCP comments to both parties to the complaint. Each party will be given 5 working days to comment on any matter relevant to the review.
13.	Secretariat	The secretariat will circulate NCP comments and any additional comments received from the parties to all members of the review committee.
14.	Review committee	Having considered all the information provided to it, the review committee will send their recommendation to the secretariat.
15.	Secretariat	The NCP secretariat will send the review committee’s recommendation to the steering board and the steering board will have 5 working days to consider it. The review committee can determine how it will manage the process. It is suggested that all the review committee members read all documents, meet to discuss the key issues, and nominate a lead writer. This lead writer should then manage the collation of points and write the final report.
16.	Steering board	The steering board will approve/reject the final review conclusion and recommendation over email.
17.	Secretariat	The secretariat will send final review recommendation to the NCP.
18.	Secretariat	The secretariat will communicate the final procedural review outcome to all parties.
19.	Secretariat	The final recommendation, approved by the steering board, will normally be published promptly on the DIT website. Any government members of the review committee will not be named, unless they are SCS or above.
20.	NCP	The NCP will take appropriate action on the steering board’s recommendation and provide an update to both the steering board and parties on its actions.

4. Outcomes

4.1 Procedural review outcomes

4.1.1. After considering the review request, the review committee will come to a decision on whether they think the NCP has followed its procedures or not. This must be agreed by a simple majority of the review committee.

4.1.2. If the review committee rules that the UK NCP followed its procedures, it will make a statement to the steering board explaining why.

4.1.3. If the review committee rules that the UK NCP has not followed its published procedures, or where there is an opportunity for best practice and continuous improvement, the review committee will set out the reasons for its conclusions and make a recommendation to the steering board.

4.2. What a recommendation looks like

4.2.1. A recommendation to the NCP comments on whether the reasons for the request are agreed and, if so, identifies the relevant failures to follow procedure.

4.2.2. A recommendation could include suggestions for action that the NCP should take in relation to the complaint, where these are not immediately apparent from the nature of the failure to follow procedure.

4.2.3. Where the procedural review has identified that the NCP’s procedures are themselves unclear, the steering board may wish to recommend how they might be clarified.

4.3. How a recommendation is finalised

4.3.1. The recommendation will become final unless 2 or more members of the steering board who are not members of the review committee raise an objection.

4.3.2. If an objection is raised, the conclusion of the procedural review will be delayed until the next full steering board meeting at which it is practicable to consider the request.

4.3.3. If the steering board agrees to the recommendation, the board will send this to the NCP; and inform both parties to the complaint.

4.3.4. The final recommendation approved by the steering board will normally be published promptly on the NCP website, unless the steering board considers there is a good reason to withhold or delay publication or only publish a summary.

4.4. How the UK NCP takes on board the outcome of the procedural review

4.4.1. The steering board will not replace the NCP decision with its own appraisal. However, if the decision is sent to the NCP for reconsideration, the NCP will re-open the complaint in accordance with the instructions of the steering board, correct the mistakes and, if necessary, reconsider its final statement.

4.4.2. No further request for the review of that decision may be made.