(5 years, 11 months ago)
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The Senior Deputy Speaker
That the further Report from the Select Committee on the conduct of Lord Lester of Herne Hill (3rd Report, HL Paper 252) be agreed to.
The Senior Deputy Speaker (Lord McFall of Alcluith)
My Lords, Lord Lester resigned as a Member of the House on Wednesday last week, a few hours before this report was published. As a result, Lord Lester is no longer a Member of the House and the recommendation for his suspension is unnecessary. Nevertheless, the report before us today is an important part of the process. It sets out several key points of principle which the House is invited to endorse. I urge the House to agree the report, both to deliver justice to the complainant, Jasvinder Sanghera, and to give confidence to other possible complainants and respondents that we have a robust but fair process in place for investigating allegations. That point is key. Since the debate on 15 November, there have been comments in the media, and by members of the public, suggesting a loss of confidence in our ability to hold our Members to account. We must work to regain that confidence today.
On 15 November, the House debated the committee’s original report on the conduct of Lord Lester. During that debate, a number of criticisms were made of the House’s procedure, and of the commissioner’s investigation. These criticisms relate to the need to ensure that investigation is fair and provides natural justice for both the complainant and the Member; whether such investigations should involve cross-examination; the need for the evidence to be robustly tested; the standard of proof required for the commissioner to reach her finding; and the question of legal representation. At the end of that debate, the House voted to remit the original report to the Privileges and Conduct Committee on the grounds that the commissioner had,
“failed to comply with paragraph 21 of the Code of Conduct which required her to act in accordance with the principles of natural justice and fairness”.—[Official Report, 15/11/18; col. 1995.]
The House asked us to think again, and we have taken great care to reflect on the arguments made in the debate. In doing so, we have drawn on not only the considerable legal and investigatory experience of individual committee members but expert input from Dr Helen Mott, a specialist in understanding the psychology of the perpetration and experience of sexual harassment, research from the Library of the House, and the policies and practices of other parliaments and professional organisations in dealing with such cases. We have also considered further submissions from both Lord Lester and the complainant, Jasvinder Sanghera, which are published with our latest report.
Our report before the House today robustly and fully addresses each of the criticisms made in the previous debate. It reaffirms the recommendations in our original report that Lord Lester,
“breached paragraph 8(b) of the Code of Conduct by failing to act on his personal honour—and specifically, that in the course of his Parliamentary duties, he had sexually harassed a member of the public and offered her corrupt inducements to sleep with him”.
It restates our unanimous support for the commissioner, who conducted her investigation,
“to the highest standards of fairness and rigour”.
She did so in accordance with a process set out in the Code of Conduct, which each of us signs at the start of each Parliament. That afforded Lord Lester every chance to put his case across and question the evidence against him.
I do not intend to set out those parts of the report which deal with factual questions about the detail of the investigation. They speak for themselves, and I believe the House has already gone further than it should in reopening the commissioner’s inquiry. However, I wish to summarise our response to the points made in the debate about the fairness of the processes. The report shows clearly that it is best practice in complaints of this nature to follow an inquisitorial process, with no cross-examination. We are not just heeding the advice of experts, such as Dr Helen Mott; we are also absolutely in line with the practice of the bodies which regulate the conduct of Ministers, judges, and parliamentarians in similar legislatures around the United Kingdom and beyond.
Our system works because the commissioner interrogates the evidence, particularly that of the complainant and the respondent, and gives all parties the right to challenge the evidence at each stage. This is an internal disciplinary process, not a judicial one. We simply do not accept that cross-examination, whether conducted by a QC advising the commissioner or anybody else, would be appropriate. Indeed, it would put us out of line with most comparable organisations and the advice received.
Lord Pannick (CB)
My Lords, I declare my interests: I have been a friend and colleague of Lord Lester for many years. I assisted him during the disciplinary process, although I was not allowed to speak on his behalf. On 15 November, I moved the amendment that the Commissioner for Standards had failed to comply with paragraph 21 of the Code of Conduct because the process was not fair or in accordance with natural justice, which the House approved by 101 votes to 78. I have not tabled an amendment today because, as the Senior Deputy Speaker mentioned, Lord Lester has resigned, but I want to make three points.
First, I think it is a matter of regret that the committee did not accept the view expressed by the House on 15 November. We had a three-hour debate and views were expressed on both sides of this difficult issue. I expected the committee to move forward with an approach that accepted the view of the House, rather than contradicting it. When we engage in parliamentary ping-pong, it is with the House of Commons, not with ourselves—not with a committee of this House. It is regrettable that the committee did not accept the view of this House.
Secondly, although the committee has satisfied itself that the procedures in this case were fair and in accordance with natural justice, I can tell the House that that is not the view of a substantial number of Members, who have expressed that view to me. From my discussions with senior lawyers and judges outside the House, I can also tell the House that that community’s overwhelming view is that, but for parliamentary privilege, this report would not withstand challenge in a court of law. That is for all or some of the reasons set out in the opinion of David Perry QC and Rosemary Davidson attached to the original report of the committee; I agree with the Senior Deputy Speaker that it is unnecessary and inappropriate to go into that today.
The courts would not find what is said in paragraph 15 of the second report from the committee very persuasive. It relies on a decision made by Lord Denning in 1952, but the standards of disciplinary justice and administrative law have moved on in the last 66 years. The courts would not find the arguments summarised by the Senior Deputy Speaker—that this is an internal disciplinary matter, where we follow the same procedures as other parliamentary assemblies—very persuasive. This is a matter where an individual’s reputation has been destroyed by reference to allegations of what is said to have occurred over 11 years ago. That requires the highest standards of fairness in the procedures. That point was made by the Joint Committee on Parliamentary Privilege, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, in 1999. I agree with what his committee said at paragraph 280 of its report, that disciplinary proceedings in Parliament, whether against Members or non-Members, should be brought into line with what were described as “contemporary standards of fairness”. It said at paragraph 281 that it was “essential” that there should be,
“safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies”.
For the avoidance of any doubt, I emphasise that I am not saying, and I have never said, that the House should believe Lord Lester rather than Ms Sanghera. I do not know who is telling the truth about this matter. I am not naive. I recognise that otherwise respectable men do very odd things in relation to sex. I have constantly argued that the only fair and effective way to determine who is telling the truth is to follow the procedures, which include cross-examination, which are accepted in courts of law and other disciplinary tribunals. I recognise of course that the process must be fair to the complainant as well as to the person accused, but there is no inconsistency in believing, as I do, both that sexual harassment and abuse of power are serious wrongs that should be properly investigated and, when proved, should be punished, and that allegations of this nature, like all other allegations of serious misconduct, must be addressed by a fair and rigorous process. That is not disrespectful to complainants or—to answer the Senior Deputy Speaker—damaging to the reputation of this House. Indeed, if anything is damaging to the reputation of this House it is not to adopt in relation to these matters procedures that withstand serious scrutiny.
The Senior Deputy Speaker also suggested that it is unfair to criticise the commissioner because she cannot answer back. With great respect, that is wrong in principle and in fact. It is wrong in principle because in any other public context a decision can be challenged in court. The commissioner cannot be immune from reasoned criticism, especially when paragraph 21 requires her to act fairly. It is wrong in fact because the commissioner did answer back. She responded to the points made by Lord Lester to the Privileges and Conduct Committee.
My third and final point is that the committee should take a hard look at our procedures for the future. Those procedures ought to implement the recommendations of the Nicholls committee in 1999, particularly those relating to cross-examination and the right to legal representation. I note that in Written Answer HL 2916 on 16 November 2017 the Senior Deputy Speaker said in relation to complaints of sexual assault and sexual harassment:
“The procedures and processes for investigating complaints made under the Code were not designed with complaints of this nature in mind and this is something … the Committee for Privileges and Conduct will need to consider”.
This case has illustrated that the noble Lord was correct in that statement. The procedures are not designed to address a complaint of this nature, and careful consideration is now required as to what amendments to introduce in the light of this unhappy episode. I say “unhappy” because it has been a painful experience of course for Ms Sanghera and for Lord Lester, but also for many noble Lords, including myself and, I am sure, the members of the committee. I have much regretted taking a different view on this issue from many noble Lords who I much respect.
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, I did not speak during the debate on 15 November, nor did the leaders of the other main political groups, despite all of us being members of the Privileges and Conduct Committee who unanimously supported its conclusions. We felt then, as now, that whether or not to endorse the committee’s report is not a party-political decision but a House decision. However, as Leader of this House, I feel that today I should speak briefly.
As the Senior Deputy Speaker has said, to an extent the recommendations of the committee’s report have been overtaken by Lord Lester’s decision to retire from the House last Wednesday. But it remains important for us to come to a conclusion on the Motion before the House in the name of the noble Lord, Lord McFall. For my part, I fully support it. I understand that the noble Lord, Lord Newby, is not intending to speak today, but he has asked me to make it clear that the report has his full support too.
I and my fellow members of the Privileges and Conduct Committee believe that the commissioner carefully and methodically followed the procedures set out for her by our Code of Conduct, which I am confident comply with the procedures of natural justice and fairness. Our commissioner is both impartial and independent. She sought and received instruction from the sub-committee in the way she approached the investigation. She ensured that Lord Lester was aware of all the points made by the complainant, and had time to respond to them, and she carefully evaluated all the evidence and explained why she reached her conclusions. A great deal of work went into the investigation of the complaint and into ensuring both parties were given a fair opportunity to comment, and that is only right: two people’s reputations were at stake.
During the debate on 15 November, much was said about the process followed by the commissioner not being fair, because it did not provide for cross-examination, as the noble Lord, Lord Pannick, has repeated. The absence of cross-examination does not mean that the process followed was unfair. Our code provides for an inquisitorial rather than an adversarial system to determine breaches. What is necessary—and what our code provides—is an impartial adjudicator who takes full statements from all parties, gives each party notice of the case made by the others, gives all parties the opportunity to respond and carefully reaches decisions by thorough testing and evaluation of all available evidence. That is what our commissioner did.
As a House, we should show that we support the processes that we ourselves have put in place and that we are capable of regulating ourselves. I am sure that I am not alone in being very concerned at the letter sent by 74 well-esteemed staff of this House expressing their disappointment in the outcome of our previous debate. As the noble Lord, Lord Pannick, said, this has not been a happy experience for any of us, but I truly hope that following our further debate today, noble Lords will support the report of the committee.
Baroness Kennedy of The Shaws (Lab)
My Lords, I was not present at the previous debate. Ironically, I was in India speaking to a gathering of senior judges about the failure of justice systems to deliver justice for women and the underlying problems, sometimes with the law but more often with attitudes, that persist in our societies to the detriment of women.
Had I been here, I would not have voted. I would have recused myself because of my friendship with Anthony Lester. I have known him since I was a young barrister. I have huge admiration for him, and my fondness for him and his family is considerable, but we do not sit in judgment in cases involving a friend or a colleague. No juror would sit in a case where a friend was in the dock; no judge would sit in such a case. That is because friendships colour our judgment. We do not want to think ill of a friend. We see their pain and feel their humiliation. We hear their side of the story and want to believe it. That is in the nature of friendship; we are partisan.
That was why we created in this House an independent commissioner. It was because we recognised that the risks of partisanship were great. We recognised that institutions often protect their own, as we had seen the scandals around the Catholic Church, the Anglican Church, the BBC, the police and different aspects of the establishment. Reflecting on all that, we created the current rules.
I ask the same question as the Senior Deputy Speaker: when the previous debate took place, who was in the House to make the case for the complainant, to speak as her friends and to speak of her character and achievements? That was why, when I read the Hansard of the debate, I was covered in gloom: it was an ill judged and misconceived debate. Although it was presented as being about process, the noble Lord, Lord Pannick, and others expressed views that implied they found such an accusation difficult to believe of their friend. That is how we all feel about our friends. The debate was presented as being about process, but it was not about justice.
All the tropes that imply that women are somehow not be to be relied on were presented to this House; for example, about delay. We have learned that delay is not a reason for not believing somebody, especially when they have experienced some transgression of a sexual kind. Things were said about writing something nice in a book about somebody who might have done something inappropriate to you, but probably every woman in this House will tell you how you get on with business after somebody has behaved inappropriately and try to normalise it so that your relationships can continue, especially if your promotion, your Bill, which you are trying to get through Parliament, or your pupillage might rely on the good will of the person who has crossed the line.
I want to remind the House of the terrible folly that has blighted this distressing business in the way that it has been discussed in the media and in this House: the confusion between criminal trial rules and disciplinary processes. This is not a criminal process—I want to emphasise that to many of the older lawyers in this House who do not seem to have kept up with the times and the disappointment that women feel about how legal processes fail them. This is a disciplinary process. Talk of proof beyond reasonable doubt, rigorous cross-examination and the need for counsel is wholly inappropriate.
Let us remember why: we are here dealing with an imbalance of power. That is the basis of the complaint. Women are complaining that their working lives and professional interactions are blighted by sexual harassment. There will be few women in this House who have not experienced it at some point in their careers. Many of us just learned to brush it off and get on with things but the young do not accept that any more; they want proper processes and they do not want it to be dealt with in the way that has been described by many of our older lawyers. Young women will not come forward to make complaints about powerful men if they are going to be subjected to Old Bailey-style quizzing in the presence of the very Lord they are complaining about.
Let us imagine that it is a young librarian in this House who has been groped by a Peer. Is she really expected to face him or his well-heeled lawyer? How do we create equality of arms when we have a Lord able to secure the professional services of a top QC and the young librarian can afford no such grandeur? Do we find some low-level lawyer and pay him or her out of the public purse when we are cutting legal aid so much to the bone that most people are having difficulty finding representation? Could we justify it? It was for all these reasons that Members of this House devised a system in keeping with most disciplinary procedures, using the inquisitorial method, not the traditional adversarial method. That means an independent assessor, arbitrator or commissioner investigating the complaint, sensitively testing its veracity, applying the same careful, probing attention to the account of the person complained of and then allowing each the opportunity to respond to the account of the other. The commissioner then reaches a conclusion on whether the complaint has probity.
I have sat in that role on a number of occasions. She has the advantage over any of us in that she has heard the live accounts of both parties. We invented this process without complaint at the time. I have no doubt that it could be improved and, as we go forward, I think it should be. Because of my own experience in these cases, sitting as the commissioner did, I suggest that it is better to sit with another assessor, as I usually do. I have always felt that I benefited from the help of others in evaluating credibility. The commissioner in this case has been subjected to wholly unjust criticism. She is a very experienced solicitor and we chose her carefully after a competitive process. She has dealt, in her 40 years’ experience, day in, day out, with the stuff of humankind, sitting as a judge in mental health matters. She is not an acquisitions and mergers lawyer, a commercial contracts lawyer, or someone dealing with fine points of law in the Supreme Court, but she has dealt, day in, day out, with the stuff of human frailty—human falls from grace and issues of dishonesty and honesty. We burdened her with the responsibility of judgment on our behalf and she deserves our respect, rather than what she was treated to.
I shall mention one area where I think she may have been wrong in law. She took the view that the allegations stood or fell together. While she may have felt handicapped by Lord Lester’s position that all the matters were fabricated, it was quite possible, for example, that there was inappropriate conduct and an unwelcome sexual pass but that the business of having a discussion about coming into this House, perhaps sitting on the Cross Benches—a discussion that many of us might have had with talented persons we thought might have contributed to this House—might have been misunderstood. The two may have become conflated, so to have felt that the allegations all stood or fell together seems to me a mistake. Evidence is not a seamless role: you can be absolutely truthful and right about one thing and mistaken about something else. The Privileges Committee, however, agreed with the commissioner’s decision and this House will have to make a decision too.
I suggest to the House that those who are friends of Lord Lester, like me, should not be voting. I will not vote. It would not be appropriate: I am conflicted between my friendship with Lord Lester and my desire to see greater justice for women. I believe that we still have not got the system for women right.
Before I finish, I want to say that I think the suspension of four years was too long, but that boat has sailed now that Lord Lester has resigned.
Lord Pannick
As a matter of information, it is not my intention to call a vote today.
Baroness Kennedy of The Shaws
That is a source of relief to many of us. It would have been very inappropriate, as it was on the last occasion.
I feel very sad about this whole business. I am sad for the complainant. I am sad that the commissioner has had a tough time. I am sad for Lord Lester, his wife and his family. I want us to make a pledge to behave better. As men and women, we are trying to remake our world. We want an equal society. We will achieve that only when there is mutual respect between men and women. We can only do that together, as men and women. This House should see that we do that as we go forward. These processes have to be good enough for the job.
Baroness Hussein-Ece
I am grateful. I was present at the debate on 15 November. It was quite by accident—we had all been told that no Division of the House was intended. It was a Thursday afternoon, so Members of your Lordships’ House were leaving in numbers to catch trains and attend other commitments. The numbers were dwindling as the long speeches went on. However, I stayed to listen, because I felt increasingly dismayed by the tone and the imbalance of the debate that was unfolding. I thought it was no longer your Lordships’ House, where we debate matters of public interest, but that it had morphed into a court of law.
I listened to successive eminent QCs and other lawyers—people I respect enormously—stand up and say for how many years they had known Lord Lester. Collectively, those who spoke had probably known him for over 150 years. Someone said 40 years, another said 30, and another said that their families went on holidays together. I thought to myself that they would surely recuse themselves and not take part if there were a vote because, as the noble Baroness, Lady Kennedy, said, they had a bit of an interest.
Before coming to your Lordships’ House, I served as a councillor in two London boroughs for a total of 16 years. In the code of conduct, according to the Nolan principles, it would be quite improper for any councillor to take part in a debate or vote if they had an interest. If it involved a member of your family or a close friend, you would recuse yourself. I chaired the overview and scrutiny committee for years. I would not have tolerated anyone taking part in a debate such as we witnessed on 15 November. Many Members are councillors or have been councillors. I shall read a sentence from the code of conduct, which is very clear:
“You must ask yourself whether a member of the public—if he or she knows all the facts—would think that your personal interest was so significant that it would probably affect your decision on the matter. If he or she would think your judgement would be affected, then you have a prejudicial interest”.
That is certainly what we witnessed on 15 November.
I did not intend to speak. I was not prepared and no one had sent me briefing notes. However, I felt that I ought to stand up and speak, and to address the imbalance. I know the noble Baroness, Lady Jones, objected to some of the comments being made. I spoke at length, trying to balance the debate. We heard over 15 times about Lord Lester’s integrity and contribution—and rightly so—but we heard nothing about the complainant and her contribution to public life. Somehow that was not worthy of discussion. I felt it was important to put that on the table and add it to the debate. I am glad that I did.
I was not sure at the time—I thought I was maybe missing something and that this was how such reports were debated in your Lordships’ House—but I thought it important to introduce some balance as someone who, as I said at the time, experienced sexual harassment years ago. I can still remember it and its impact on my professional life at the time. I was glad that I had spoken. After the debate, when I went home, I opened my emails. I had many emails from members of staff, both here and outside, in other political parties, and from Members of your Lordships’ House who had heard about it, read Hansard and wrote to me saying, “Thank you for speaking up. I am so sorry I was not there. I fully intend to be there next time. We did not think it would go on so long and that there would be a Division”. I am glad that this is happening on a Monday, when your Lordships’ House is better attended by people who want to be involved in this debate and have their say.
Then I heard about the 74 members of staff here who wrote in alarm after reading what had transpired in that debate. I say to those women who wrote— 74 really respected members of our staff—that we hear them. I hear them. We hear them and we attach great respect and responsibility to their concerns. When you read that sexual harassment, bullying and groping are “far too common” in the House of Lords, what does that make you think? We really need to take women seriously. There is another generation now who will not tolerate that kind of behaviour—and nor should they. When they say that they want Parliament to be a safer environment to work in, surely we all want that. That is what this is about. We must listen to women and support them as well.
What is missing in these procedures is any support for the complainant; I am glad the Senior Deputy Speaker said that. She was cast adrift. It was all very well for Lord Lester’s eminent and well-connected friends to use their positions to write columns in the Times, to give interviews to the media and to speak in a very prominent way—they have that. The complainant did not have any such recourse or support apart from her immediate family and friends. That needs to be addressed and we need to consider what has happened in the other place following the Dame Laura Cox report on bullying and sexual harassment, because it is clear that Members of your Lordships’ House should not “mark our own homework”. It is time we had more independence in the way that these proceedings are dealt with.
I endorse the report and welcome its conclusions. I pay tribute to Ms Sanghera for her courage and resilience as she goes through a very difficult time. I hope she can draw a line under this and move forward with her life. I say to all other women who want to come forward: please do, because you will be listened to.
Viscount Hailsham (Con)
My Lords, I rise to express my concern at the procedures that this House has adopted with regard to the case of Lord Lester. In expressing these views, I make it plain that I am making no criticism of the commissioner. I accept that she was conducting her functions in accordance with the rules that were laid down by this House. My concerns lie with the procedures that we have put in place, rather than the manner in which they were exercised.
Lord Lester has resigned from this House, so this debate can be more general in content than was the case on 15 November, when his future was being discussed. I will make just two comments about Lord Lester. For the avoidance of doubt, he is in no sense a close friend of mine. First, I do not take his resignation as an admission of guilt. I can well understand that this process has been extremely distressing for him. He has said that these events have had a serious impact on his health and for that reason he wishes to draw a line under them. I can well understand that decision. It is a sufficient explanation for his resignation. Secondly, Lord Lester has made an important contribution to the law on human rights, to this House and in public life in general. That is an important legacy, which, notwithstanding the findings of this report, will always stand to his credit.
My concerns about the procedure that this House adopts are of long standing. I first expressed them in 1997 in the House of Commons when the case of Neil Hamilton was under consideration. Mr Hamilton was no friend of mine. His was not a popular case. But I formed the very firm conclusion that he had not been fairly handled by the parliamentary process then in place, which is substantially the same as our own.
I regret that I could not be here when this matter was debated on 15 November. I have, however, read the Hansard and the two reports produced by the committee. I am reassured to note that the views that I am about to express are very much in line with those expressed by, for example, the noble and learned Lord, Lord Woolf, the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Pannick, and the noble Lord, Lord Thomas. I am happy to associate myself with them.
I have never held high judicial office nor been a frequent advocate before the Supreme Court; I am but a jobbing barrister, but I have jobbed for 50 years on and off in both the criminal and the civil courts. I presently act as the legal assessor to the regulatory panel for the Nursing and Midwifery Council and the Health and Care Professions Council, and until last year I helped to regulate the doctors as a legal assessor. For these regulatory panels—indeed, for all the statutory panels of which I am aware—Parliament has laid down by statutory instrument a precise procedure that has to be observed in order to ensure that the principles of natural justice and fairness are observed, and the appellate courts are rigorous in enforcing compliance with those requirements. Paragraph 15 of the further report states that,
“professional bodies have systems very similar to our own”.
That is not my experience. It is not correct in respect of professional bodies regulated by statute. In respect of them, the further report is wholly mistaken.
Very recently I was the legal assessor in a case that is relevant to the one we are considering. A registrant was alleged to have had sexual relations with a former patient during and after the provision of treatment. In accordance with the procedure laid down by Parliament, both parties were represented by counsel; the regulator’s lawyer opened the facts of the case and submitted to the panel the previously made statements of relevant witnesses; and the relevant witnesses were called and cross-examined. The registrant then gave evidence and was cross-examined. Closing submissions were then made. This was the procedure laid down by Parliament. It ensured that a fair process was observed. Had it not been followed, the appellate courts could have intervened.
Yes, the registrant had had sexual relations with the former patient, but these had commenced after the conclusion of the treatment and at the instigation of the patient. Moreover, the sexual relations were continuing, years after their commencement. These facts were not clearly apparent from the papers and emerged as a result of the process that I have just described. They were highly relevant to the ultimate conclusion.
Baroness Jones of Moulsecoomb (GP)
Forgive me—I just do not see the relevance of this. I am sure there is almost no Peer in this House who does not think that our processes are inadequate and are going to be changed in future. I wonder if the noble Lord is trying to describe a system that he wants imposed here. I suggest that that would be better given in writing to the committee, rather than our hearing about other processes at this time.
Viscount Hailsham
My Lords, when you have a topic of this importance, touching as it does on the liberties of Members of this House, it is entirely right that we should take part in a public debate. To say to the contrary is to try to suppress argument, and I will not be party to that.
Baroness Jones of Moulsecoomb
I was not trying to suppress debate; I was trying to suppress planning for future processes, which is clearly going to be a committee job.
Viscount Hailsham
I hope that future processes will be informed by the nature of this debate. I hope that noble Lords will participate in considerable numbers, so that future processes can be properly formulated in accordance with the views of your Lordships.
Baroness Smith of Basildon (Lab)
The noble Lord has complained about the process not being one of cross-examination. I do not know if he heard the noble Lord, Lord McFall, explain at the beginning of this debate why this is an inquisitorial, not a cross-examination process. In normal practice, victims of sexual harassment would not be cross-examined. He might have found it helpful if he—and others— had examined the transcripts of the commissioner’s inquisitorial process by which she questioned the complainant, Jasvinder Sanghera. Has he taken the opportunity to read them?
Viscount Hailsham
In the end, of course, it is a matter of opinion, but I practised at the bar for 50 years, and I believe very strongly that cross-examination is essential if you wish to find out the truth of matters.
Viscount Hailsham
The noble Lord may say it is wrong, but that is my opinion. It is based on a great deal of experience and is in accord with the recommendations.
Viscount Hailsham
If the noble Baroness will forgive me, I will proceed for the moment.
Viscount Hailsham
Very well. If it is the wish of the House I will certainly give way to the noble Baroness.
Baroness McIntosh of Hudnall
Before the noble Lord proceeds with his argument, will he please answer the question put to him by the Leader of the Opposition?
Viscount Hailsham
Of course I believe that we need to look at our procedures and I am quite willing to consider the prospect of having an alternative method. I know, for example, that the noble and learned Baroness, Lady Butler-Sloss—
Baroness McIntosh of Hudnall
That is not the question to which I referred. The noble Viscount was asked by my noble friend whether he had read the transcripts of the evidence. There is a simple yes or no answer to that, I believe.
Viscount Hailsham
I have not read the entire transcript of the evidence but I have read the entirety of the first and second reports. Furthermore, I have read all the appendices to them.
I come back to the central issue. We have set in place an inquisitorial system and we have to ask ourselves a very serious question. Does it measure up to the requirement in the Guide to the Code of Conduct which requires us to address and respect the principles of natural justice and fairness? We need to ask ourselves if there is a good reason why we do not. I am bound to say that I cannot identify a plausible reason for this. Moreover, our procedures do not comply with the recommendations made to Parliament by committees appointed to consider our procedures.
It is true that some of the recommendations to which I am about to refer were made in different contexts, but I suggest that they set out principles of fairness and natural justice which are general in application. I simply do not accept the arguments for not applying those principles, which appear on page 18 of the further report. The Joint Committee on Parliamentary Privilege reported in March 1999 and the noble Lord, Lord Pannick, recited—
Is the noble Baroness trying to intervene?
Viscount Hailsham
I am so sorry; I did not mean to embarrass the noble Baroness. The noble Lord, Lord Pannick, recited the chief recommendations of the 1999 committee, which included a recommendation that the person alleged to have committed the wrong should have the opportunity to call witnesses at the appropriate time and to examine other witnesses.
Baroness Smith of Basildon
I apologise to noble Lords for intervening again. Does he accept that that particular committee in 1999 was not looking at an internal disciplinary process but was in fact looking at how to deal with contempt of Parliament, which is a much more serious matter than an internal disciplinary issue?
Viscount Hailsham
It was laying down general principles of natural justice and fairness—that is the point. I believe that they have an application for all these proceedings. The recommendations in the 1999 report do not stand alone. Incidentally, the membership of that committee was extraordinarily distinguished. It included not only Lord Nicholls of Birkenhead but a former Lord Chief Justice, a former Attorney-General, a former Solicitor-General and two former Home Secretaries. Their views were not lightly to be disregarded.
In substance, they were repeated in the 1995 report on standards in public life. Again, they are substantially the same as those made in 1967 by the Select Committee on Parliamentary Privilege—again, a different context, but with principles of general application. That committee recommended that the rights granted to a person against whom a complaint is made should include the right to examine, cross-examine and re-examine witnesses and to make submissions to the Committee, including by an authorised representative. In the spirit of due diligence—
Baroness Falkner of Margravine (LD)
Does the noble Viscount accept that none of the cases he is speaking about mentions sexual misconduct—as paragraph 4 of appendix 2 on page 18 points out? Did he hear the intervention by the noble Baroness, Lady Kennedy, which absolutely emphasised that standards of conduct have moved on and that the context to which he refers is not the context in which women today expect to be treated—and to which I should say men would probably also ascribe? Does he accept that the House wishes to move on and that his peroration, although enormously important, could perhaps be put to the committee in writing—not because we are disinterested in what he has to say but because I am sure the Senior Deputy Speaker will accept that there might be a consultation where we will all have the ability to express our views on future conduct? We are now dealing with the report in hand and it would be expeditious if Members could keep their speeches relatively brief so that those of us who also want to intervene might have an opportunity to do so today.
Viscount Hailsham
No, let us be fair—that could very well apply to interventions. I think it is perfectly true that people’s understanding of the gravity of sexual misconduct has changed, but I very much hope that our understanding of the requirements of natural justice and fairness has not.
I recognise that Members of your Lordships’ House will say, “Thank God the lawyers have no role to play in these proceedings”. I get an echo of that from around me. My answer is that noble Lords would not say that if they had the misfortune to be a party to misconduct proceedings which could destroy their reputation.
When I started in law—
Viscount Hailsham
I recognise that lawyers are not the most popular members of the community. When I started in the law, it was held that it was better by far that guilty persons should go free rather than that an innocent person should be convicted. I believe that that remains the proper approach. We are now at serious risk of reversing that proposition. Perhaps society appears willing to tolerate the risk of the innocent being convicted so that all of those supposed guilty are caught in the net.
Our stated objective, as set out in the Guide to the Code of Conduct, is to ensure that allegations against Members are handled in a way that accords with the principles of natural justice and fairness. I do not believe that our present procedures do that. Indeed, they could get worse.
Lord Foulkes of Cumnock (Lab)
I am not seeking to speak in this debate because I think this debate is serving no purpose whatever. The Senior Deputy Speaker has moved his Motion and we will not divide on it. As I understand it, there will be a review of the whole procedure, in which we will all be given the opportunity to make recommendations and suggestions. Why are we continuing with this—albeit erudite—completely irrelevant debate, when we have counterterrorism to deal with and then a Statement on Brexit?
Viscount Hailsham
It is never irrelevant to assert the importance of natural justice and fairness, and that is what I am doing. I am deeply concerned by the comment in the further report, which states that,
“cross-examination may be inappropriate for dealing with complaints of sexual harassment”.
On page 19 of the further report, it is stated that future changes in procedure for the investigation of sexual misconduct will recommend improvements aimed at providing better support for the complainant rather than for the Member. I welcome the former commitment but not the latter. We must be careful not to compensate for perceived historic injustices by creating future traps for the innocent. I believe that the procedures now in place expose Members of this House against whom allegations are made to the risk of serious injustice. We must be willing to look at those procedures again, with a view to ensuring that the principles of fairness and natural justice are respected.
Lord Taylor of Holbeach
My Lords, we should hear from the Cross Benches. I remind noble Lords that it is not customary to address the House for 20 minutes in an ordinary, non-time-limited debate. I believe shorter speeches would be welcomed by the House.
Lord Butler of Brockwell
My Lords, sensing the growing impatience of the House, I will speak very briefly indeed. I want to make just one point that I think illustrates the illogicality of the House’s procedures and the way in which they were pursued in this case.
In our debate on 15 November, the noble Lord the Senior Deputy Speaker said:
“The House deliberately delegated active investigation and assessment to an independent commissioner; it would be wholly wrong for the House to seek now to substitute the commissioner’s conclusions with its own”—[Official Report, 15/11/18; col. 2028.].
I intervened to ask what, in that case, was the point of the House being given the opportunity to debate the report at all—or, I might have said, Lord Lester’s right of appeal to the Conduct and Privileges Committee? If there is to be no questioning of the outcome of the commissioner’s report, what is the point of these further proceedings? If we are to be given an opportunity to debate, the fact that the commissioner conscientiously followed the procedures laid down by the House—and I believe she did—should not prevent noble Lords from expressing their misgivings about the outcome, and many have been expressed and felt in all parts of the House.
I must acknowledge that I have a partial view since I have known Lord Lester for the past 40 years and do not know Ms Sanghera. I agree with the noble Lord, Lord Pannick, and the noble Baronesses, Lady Kennedy and Lady Hussein-Ece, that the moral is that it is impossible for Members of this House to be impartial when we are judging one of our own. We should agree on what we think are fair procedures and, as Dame Laura Cox has said, we should then make the process entirely independent of the House.
I applaud the movement which supports women in calling out bad behaviour by men. I want my granddaughters to be confident that such complaints will be taken seriously, but I also want my grandsons to know that they will be treated fairly and proportionately. We should not allow citizens of this country, of any gender or status in life, to be judged and punished without a rigorous and fair process. I put on record that I fear the House’s procedures, though well intentioned and conscientiously carried out, have not produced that result in this case.
Lord Falconer of Thoroton
My Lords, I make three short points. First, I adopt in full the speech made by the noble and learned Lord, Lord Mackay of Clashfern, in the first debate. He pointed out that we all promised to abide by this procedure, that the complainant in this case made a complaint in accordance with that procedure, nobody doubted that the procedure was followed and then, at the very end of the process, this House said, “Sorry, although your complaint has been justified by the terms of this procedure, we are changing the rules now”. It was not an attractive sight to watch. I agree with the noble and learned Lord, Lord Mackay of Clashfern.
Secondly, the wrongness of the view that we have to have the orotund procedure described by the noble Viscount, Lord Hailsham, is obvious to practically anyone who has experience of disciplinary complaints. I include in the names of people to whom it is obvious the noble and learned Lords, Lord Brown of Eaton-under-Heywood, Lord Hope of Craighead, Lord Irvine of Lairg and Lord Mackay of Clashfern—the people who are on our Committee for Privileges. The idea that there is some legal bar to having a process whereby we have an inquisitor who asks the questions of both sides, putting both sides of the case, is absolutely ridiculous. Do not judge that as lawyers: judge it as ordinary people.
My third point—and the thing that makes me most angry—is the hypocrisy of some noble Lords in citing Dame Laura Cox in support of their position. What Dame Laura Cox said was that members of staff in the House of Commons would never believe that they would get a fair hearing if Members of Parliament were involved in making the ultimate decision. What happened when this case came along is that someone who was in chambers with the person we were considering, someone who had been a friend of his for years and somebody who went on holiday with him for years all spoke on his behalf. Nobody spoke on the complainant’s behalf at all. The House then voted in favour of remitting it back to the committee. We should not regard the debate on 15 November as anything other than a sign of extreme hypocrisy.
The particular hypocrisy that I focus on is the fact that the reason it was remitted was because we focused on process and all of Lord Lester’s friends then voted to remit it, despite the fact that that was the most obvious breach of process. I urge the House, by what we say today, to give the fullest possible support to the noble Lord, Lord McFall, in what he has asked us to do.
Lord Macdonald of River Glaven
I wish to address the House for a few minutes only on a subject to which many noble Lords have alluded, which is cross-examination. I cannot claim the 50 years of the noble Viscount, Lord Hailsham, but I can claim 40 years at the Bar. During that time, I guess that I have spent hundreds of hours in adversarial proceedings cross-examining witnesses myself or watching co-defending counsel or opposing counsel cross-examining. That has been the greater part of my professional life.
Many noble Lords in this debate and in the debate last month have reminded the House of the famous dictum that cross-examination is the greatest legal engine for the discovery of truth ever invented. Of course it can be, and I have seen it so. I have seen liars unmasked, fraudsters exposed and terrorists cross-examined into confinement for decades. But my years of experience have also taught me that, like most aphorisms, this one is not able to paint the whole picture. Cross-examination can, of course, uncover the truth, but it can also obfuscate. It can advance a false prospectus, and it can intimidate. In adversarial proceedings, especially where freedom and forced confinement are in issue, its essential combativeness is indulged, but always and only under the watchful eye of a trained, professional judge.
I am sure that cross-examination can be one way to get at the truth, but I have never believed that it is the only way. In particular, I have never doubted that a diligent and fair inquiry by a competent tribunal, taking the necessary evidence, examining the relevant issues and asking the proper questions, is also capable of uncovering the truth. Tribunals proceed in this way every day, in this country and in other fair-trial jurisdictions around the world. The questions asked by a tribunal are, of course, a form of cross-examination in themselves, but cross-examination conducted in a more neutral, more objective manner, perhaps better suited to the inquisitorial style.
It is clear to me from the papers in Lord Lester’s case, which I have read, that the commissioner asked the complainant about all of the primary matters that might have been put in cross-examination: “Why did you go back to Lord Lester’s house?”, “Why did you dedicate the book to him in the way that you did?”, and so on. And the commissioner got her answers. It is true that these questions were asked in a gentler, more neutral way than might have been expected from a robust cross-examining lawyer, but there is no harm in that. Indeed, there are many situations in which this sort of low-key approach is more likely to get at what really happened, precisely because it occurs in a gentler, less aggressive environment. In my judgment, a disciplinary hearing, particularly where sensitive allegations of sexual misconduct are being aired, is certainly one of those situations.
Your Lordships could have mandated an adversarial disciplinary regime. I would not have recommended it, but you could have done so. This House could have mandated an inquisitorial system in which the participants were lawyered up, including for the purposes of cross-examination. Again, I would not have recommended this, but it could have been recommended. Even though both these things could have been done, they are emphatically not a pre-condition for a fair process. On the contrary, in my judgment, the process that your Lordships alighted upon was, for all the reasons that other noble Lords and the committee have set out, reasonable and fair.
Let me address one final thing on this subject, the standing of the commissioner. Lucy Scott-Moncrieff is a figure of the highest reputation in the legal world, a solicitor with a distinguished practice, a past president of the Law Society and a founding member of the Queen’s Counsel appointments panel. This House could hardly have selected someone more suited to the difficult task in hand, or more deserving of our trust. Your Lordships devolved to her the power to inquire fairly and thoroughly into the circumstances of Lord Lester’s case and to come to her reasonable conclusion on the evidence. That was her warrant. In my judgment, she discharged it faithfully.
Before I sit down, I wish to say one other thing briefly. During my five years as a public servant, as a prosecutor, my colleagues and I struggled endlessly against the sort of insidious stereotyping that bedevilled sex crime prosecutions. “Why didn’t she report it sooner? Why didn’t she distance herself more? Why was she wearing this? Why was she drinking that?”. In the end, we believed that we were making some progress, as judges repeatedly warned juries about the dangers of making stereotypical assumptions about the way that traumatised people react to the source of their trauma, warning them that they should not allow what may be little more than prejudice to cloud their judgment of the fact that an injustice has been done. Let us not find ourselves, in this House, moving backwards.
Baroness Jones of Moulsecoomb
My Lords, I was at the debate last month. I do not know if any of your noble Lordships have seen “Groundhog Day”, but this has similarities. We are going over the same ground again. I should like to make two points. First, I support the Committee for Privileges and Conduct. Its robust response to the November’s debate was superb. I was furious during the debate; I walked out at one point, because I was so angry with a Peer who was speaking. The report is fantastic and obviously I will vote for it if anyone decides to divide the House.
Secondly, I never thought these words would pass my lips, but the noble Lord, Lord Pannick, is wrong. He was wrong to press the amendment last time and he would be wrong to push it today. He talks about fairness all the time. Was it fair to divide the House when there was no expectation of a vote and many Peers had gone home because the debate went on for much longer than expected and they had trains to catch? As I see it, fairness is not playing a full part in this process.
My last point is a question for the Senior Deputy Speaker. Lord Lester has resigned rather than been suspended. Does that mean that he maintains his rights and privileges of access here in this House, such as eating here and so on? I am sure that many of us will feel that natural justice would suggest that he should not.
Lord Baker of Dorking (Con)
My Lords, I shall be brief. I find debates on the conduct of Members of this House and of Members of the House of Commons rather sad and distasteful affairs because we are being asked to sit in judgment on our friends and colleagues. That really cannot be right. History shows that there have been many more cases in the Commons than in this House, the most famous of which was the Marconi scandal, when three Liberal members of the Cabinet bought shares in the company knowing that it would be given a contract. Today they would be put in jail. Eventually a Select Committee of the House of Commons exempted them all; they were totally guiltless. In fact, one was made the Lord Chief Justice.
I agree strongly with the proposals made by the noble Lord, Lord Pannick, in his speech. I do not object to the report of the committee, which has done a proper and correct job. But I also think we need an entirely new procedure and I agree with the noble Lord, Lord Pannick, that there should be a genuinely independent body operating under the conventions and practices of the legal system. Such a body should be drawn up and we should accept it, but let us know what we are accepting.
When it is recommended that a Member of this House be expelled, that should not come back to this House for approval. We then cease to be a court of justice and we become a parliamentary assembly. A parliamentary assembly has other feelings, emotions and loyalties, built on friendship and respect over the years. The public cannot possibly believe that we could act independently. By having an independent body, Members of this House must recognise that we would be restricting our powers in that position, which is absolutely necessary.
Baroness Armstrong of Hill Top (Lab)
My Lords, I want to intervene briefly, particularly to follow the speech of the noble Lord, Lord Macdonald of River Glaven, about cross-examination. I refer noble Lords to my relevant interests as set out in the register. I have spent a lot of time working with women who have suffered sexual exploitation and are vulnerable, but I am not saying that there are direct parallels. I am saying that there is no system that anyone believes is fully fair and objective in these cases. The most recent evidence shows that even when a judge has been aware of the advice and recommendations about how to conduct trials involving the cross-examination of women who have suffered sexual exploitation, the women’s experience leads them into mental health problems and other real difficulties.
I draw the attention of the House in particular to the recent safeguarding report from the Newcastle case called Operation Sanctuary. The person who conducted the inquiry was a barrister named David Spicer. Some lawyers in this House may know him; I am not in the legal profession so I know very few of them. He looked at the criminal court experience and court processes for supporting the victims and survivors of sexual exploitation. He said that a dedicated trial judge was appointed to preside over all the trials in Newcastle. She took care to ensure that proper processes were followed and that there was no cross-examination that went beyond what is permitted. All the complainants had access to social care and mental health professionals. However, David Spicer also reported that all the victims who gave evidence and contributed to his review complained about how they were treated in cross-examination—about the pressure, the aggressive questions about their backgrounds and motives, along with their personal details, the records of which they were previously unaware of. They told him that their long-term mental health had been badly affected, and I can testify to that, because the organisation I chaired, Changing Lives, worked with them before the trial, to get them there, and continues to work with them.
There is no perfect process. In his recommendations, David Spicer asks the Government to re-examine this issue, so that we are better able to talk about a fair process in cases of sexual exploitation. The courts do not get it right, so is it any wonder that people continue to try to find ways for this House to do it better? We should not kid ourselves that we will get a perfect process. Many women have experienced different types of sexual exploitation from what we are talking about in this case. They will suffer for years to come, and we have not yet found a fair process.
Lord Taylor of Holbeach
My Lords, I suggest we hear from the noble and learned Baroness, Lady Butler-Sloss, and then my noble friend Lady Shackleton.
Baroness Butler-Sloss
My Lords, your Lordships will be relieved to hear that I have cut out almost everything I was going to say, but I wish to say something about the future. I do not apologise for this, as I wrote to the chairman of the Committee for Privileges and Conduct three weeks ago, and have not yet had a reply. As a result, I need to say it here, in case it is not taken seriously.
The committee may, and I say this respectfully, have underestimated the difficulty of making a decision on serious issues of credibility in cases where the parties give diametrically opposing accounts of what happened and what was said. I do not believe, however, that it is necessary to have an adversarial system, so I disagree with the noble Viscount, Lord Hailsham. The current process, put in place by the Committee for Privileges and Conduct of this House, is entirely right. In most cases—for instance, the recent cases of financial misconduct—it is entirely appropriate for the commissioner to deal with the case by herself. There will be other types of case that will be equally appropriate for the commissioner. I have enormous respect for her—I know her well, and chaired the QC panel, of which she was an important member.
When I wrote to the chairman, I suggested that in future cases with serious conflicts of interest, where the credibility of the parties and witnesses is disputed, the commissioner would be helped by involving an experienced QC, who would ask the questions. Where appropriate, and tactfully—certainly in relation to the complainant—the QC could ask sufficient questions to test the case against the respondent, as well as cross-examine the witnesses and the respondent to see how the case and the defence stand up. I am not criticising Jasvinder Sanghera—I know her well, and admire the work she does—and did not criticise her in my last speech. The House must recognise that where serious allegations are denied, they will arise again in relation to Members of this House. This will not be the only case, and we must be ready to deal with future cases with the 21st century method of due process and natural justice.
Baroness Shackleton of Belgravia
My Lords, I declare my interest: I am not a friend of Lord Lester. I sat on the same Select Committee as him. I like every member of my committee, and I am very blessed to be on such a nice committee. In similar circumstances, I would hope that this House regards our duties as overriding our friendships. It is insidious to suggest that Members of this House would put their friendships above their duties to the House, and it is offensive to suggest that people would vote in the same way, as in the suggestions of “Lester’s mafia” plotting against the House. I have spoken to many people in this House; they have told me that, despite the fact that this is about Lord Lester, they feel that there is something not right about the report.
The other misconception is that those who voted against the Privileges Committee, which investigated this case, were not suggesting that Lord Lester was innocent but that this should be looked at again. That was not on the agenda and not what we were voting for. On reading the second report, I was most concerned by appendix 1. We are served by a number of unbelievably loyal and genuine staff, from the cleaners to the restaurant staff to the doorkeepers to the librarians. No wonder they expressed dismay when noble and learned Lords such as the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Butler-Sloss, speak up against the committee’s conclusions. There is obviously a problem if judges and other people have differing views on both the process and the result.
Looking forward, I beg the committee to concoct a scheme that gives some sort of certainty, not just to women. I identify with the noble Baroness, Lady Hussein-Ece, because I have suffered in the way she suggested, but that does not mean that all men are guilty. Men are entitled to just as much of a fair trial as us women, but women must not be precluded from bringing forward their complaints. There must be a fair process whereby the men feel as protected as the women who accuse them, particularly in the current #MeToo environment.
I finish by saying that I am still not satisfied about Lord Lester’s guilt, particularly because the commissioner did not investigate each allegation separately but took them as they fell, as was referred to by the noble Baroness, Lady Kennedy. I read David Perry QC’s report; he read all the appendices and transcripts and came to the complete opposite view. In circumstances where two, or many, rational people reach opposing views, surely it is for this self-regulating House to come up with a solution that serves everybody fairly going forward.
Lord Taylor of Holbeach
We will hear from the noble Lord, Lord McNally, and then from—
Lord McNally
My Lords, I would gladly have given way, but we will both get in, from what I gather from the mood of the House.
I want to clarify that I have no Marconi shares. As I have explained to the House, I once met a very distinguished American lawyer. When I explained that I was not a lawyer, he said, “Then I’ll speak very slowly”.
All I want to say is that I hope that the noble Lord, Lord McFall, reads the transcript of his opening speech and then regrets it and thinks again—
Lord McNally
Because what the noble Lord said in his peroration was that what will come back in January will not be a new system but tweaks to the existing one. We will read Hansard tomorrow and see whether it has been satisfied. Some 170 people voted, so around 200 people must have been there for that debate last Thursday. It would have helped if the noble Lord, Lord McFall, had not announced within 24 hours he would overturn that decision and apologise to the claimant. That does not sound like listening to this House.
If anything has come out of this debate, it is the conclusion that has come through time and time again: this process is not satisfactory for what it is meant to do. I make the point again. I was the leader of the Liberal Democrats and part of the leaders’ committee that appointed the Eames committee. There is no question that the Eames committee code of conduct aimed to deal with sexual harassment—it was not discussed.
The idea that “The rules are the rules, and this is what we have done” ignores one of the most important things in the first report: an unknown journalist sounded out the officers of the House some time before this complaint was made, and got the ambiguous reply that it was probably right to make a complaint in this way, but the House would probably need to update its procedures on sexual harassment. This is the problem. Everybody who says we should not retry the case then starts mentioning it, but the truth is this: if the Eames committee code of conduct is fit for purpose, why was it not used within three years of the alleged offence? Why did the complainant wait for another seven years?
Lord McNally
Wait a minute. Read what she says. Why did she wait another seven years? She did so for political reasons, not for trauma. It is not outrageous.
Lord Falconer of Thoroton
Is it appropriate to undermine somebody who does not have a chance to answer? I invite the noble Lord to stop this now.
Lord McNally
I will not take any advice from the noble and learned Lord. He has already talked about hypocrisy; I bow to his expertise in that.
Baroness Falkner of Margravine
You are not just embarrassing yourself; you are embarrassing all of us.
Lord McNally
All trials are trials for one’s life; all sentences are sentences of death. We are talking about a man who, until this case, was one of the giants of civil liberties, of sexual liberties—
Lord McNally
No, I will not give way. Give me two minutes and I will stop.
There was no questioning for 11 years. By ignoring the four-year limit and taking an 11 year-old case, we have left ourselves with a very low threshold for future complaints. I beg the noble Lord, Lord McFall, and the establishment of this place to think hard. In these debates, there has been a real concern that handling these matters is beyond the competence of this Chamber. I strongly support us giving some constructive ideas about how these can be handled with real fairness.
Every time you try to make these points, certain people immediately accuse you. I have every reason for wanting to see in place a law and codes of conduct that protect young women. I will not give way to anyone in the idea that that is not my intention. But we do not do so by overreacting to any question that the procedure could have been faulty or by not being willing to listen to very real concerns that this needs a much more fundamental review and change than was offered in the opening speech of the noble Lord, Lord McFall.
Baroness Young of Hornsey
My Lords, wow! I cannot tell your Lordships how sad it is for me to have to follow the noble Lord, Lord McNally. I have been a great admirer of his work. We have worked together on a number of issues relating to the criminal justice system. I bow to his knowledge and expertise in that area, particularly his stewardship of the Youth Justice Board. But I find his comments completely out of order and totally inappropriate. They demean the value of the debate we have had this afternoon precisely because they were not at all objective. They had no real sense of moving the debate forward. Indeed, he misunderstood, misinterpreted or misheard—or maybe the noble Lord, Lord McFall, miscommunicated—the fact that we all agree that these procedures need changing. Indeed, the House’s reluctance to change over the years has been one of the major problems in this place.
I will now say what I intended say. I declare an interest as a member of the steering group tasked with implementing the recommendations of the working party set up to address bullying and sexual misconduct, convened by the leader of the other place. As such, I had access to the views of all key stakeholders in this very important issue: Commons staff, Members of both Houses, trade union representatives and so on. As somebody has already said, we will have to deal with this issue time and again. Anybody who thinks that it does not happen here is hugely mistaken.
One of the critical issues raised during that series of discussions and consultations was historical cases. There is plenty of literature that describes why people take so long to come forward—not just women, but men too. I met a man last week at a conference on sports and human rights who had suffered appallingly at the age of 15 and only now felt able to come out and talk about it. That is what happens, for various reasons. I cannot put myself inside his head and tell noble Lords why, just as the noble Lord, Lord McNally, cannot put himself inside anybody else’s head and say why this is the case, but it happens. It is a regular pattern. The damage caused by these incidents and events has a ripple effect on not just the individual but their friends, family and professional contacts.
I do not want to rehearse previous arguments made on either 15 November or today because I am sure the House is running out of patience, but I support the remarks made by other noble Lords too numerous to mention that drew attention to the inequity embedded in this case. Again, I speak not as a specific friend of Lord Lester—again, I worked with him—and I do not know the complainant. But noble Lords will be aware that the original working party inquiry that covered both Houses, of which my noble and learned friend Lord Hope was a member, and the subsequent report by Dame Laura Cox were established by Parliament as a result of a steady flow of disturbing reports of bullying and harassment across all levels of staff and Members. While I hope that the severity and quantity of similar problems in this House will not be as great as it appears to have been in the House of Commons, I fear that some noble Lords may be shocked by the outcome of the recently commissioned independent inquiry.
I am trying to move the debate on a bit from where we are now. I say this because a number of noble Lords have expressed surprise at the idea that anything so awful could possibly have happened to somebody was, or involved anybody who was, their friend. It happens. Interestingly, others—maybe from different publics than those that other noble Lords have access to—have spoken to me of a range of examples of misconduct in this House. This House has prided itself on its integrity and belief in a code of honour. Sadly, that is just not enough now. Somebody mentioned the 21st century. I wish we could get that far forward in this House on some of these issues. We are often too slow to acknowledge changes that have happened in society, which are not being reflected in this House. The experiences some of us have had here give testament to that. I know because once people realised that I was on the committee, they would come to me with examples of things that had happened to them or that they had witnessed or heard about.
Part of our problem is that privilege and power have become normalised. We think we are owed the privilege and power that we have within this House. I do not believe that to be healthy, because in doing so we distance ourselves from the everyday experiences of most people in our society, which is highly problematic.
I am not going to go over the comments made on 15 November, but that debate reiterated for me that the concept of natural justice must be applied to everybody equally, not just to friends or to a privileged few with access to platforms from which they can continuously express their views.
Abuse is invariably about asymmetrical power relations. Sadly, therefore, it was no surprise to me that the 74 members of staff sent that letter to the Privileges and Conduct Committee. That letter was from our colleagues—members of staff whom we work with here in this House—and they pointed in no uncertain terms the chilling effect of the thrust of that debate and the result of the Division. Indeed, others outside of this Palace of Westminster pondered the wider implications, including what happens in our courts when a criminal sexual offence has been committed and someone comes forward with an historic complaint.
The way we are set up here does not help. Those of us who have researchers and assistants, travel abroad and hold one-to-one meetings must ensure that we understand and adhere to appropriate standards of behaviour. Part of the problem is that there is no way of knowing definitively who does work alongside House of Lords staff and Members. This poses a significant risk, particularly to young people coming in, who may have little or no knowledge of the world of work, how power works and what kind of behaviour in this unique institution is and is not acceptable.
When the time comes, I hope noble Lords will embrace new procedures; I shall be interested to see how that debate goes. I hope those new procedures will be adopted as the basis, at least, for a reworked code of practice that brings this House’s way of dealing with misconduct up to date and into alignment with recently adopted procedures in the House of Commons. That is sorely needed to restore faith all round.
Lord Newby (LD)
My Lords, as noble Baroness the Leader of the House said at the start of this debate, I had not intended to intervene, and I strongly support the committee’s report. However, I must publicly dissociate myself from some of the comments made, particularly, I am afraid, by my noble friend—my old friend—Lord McNally. I strongly support the complainant and would not wish her to believe that the sentiment of the House is anything other than to give her support at this time, rather than criticism.
Baroness Smith of Basildon
My Lords, I sense the mood of the House is that we should be drawing the debate to a close. I appreciate that it probably was not easy for the noble Lord, Lord Newby, to make those comments; I think the House is grateful that he did.
As my noble friend Lady Kennedy said, this is not a court of law. We are dealing with an internal disciplinary procedure of your Lordships’ House. I would like to place on record, and I hope the House will concur with me, our thanks and appreciation, to the commissioner for undertaking what has been a long and detailed inquiry, to the sub-committee that first looked at this and said it was appropriate that the committee address the issues—I know from my own work the amount of time and effort they have taken to read the reports and to look at the information—and to the Senior Deputy Speaker. I hope not one iota of anything he said at the Dispatch Box today—which I strongly support—will be retracted.
In the previous debate, the noble Lord, Lord Pannick, and other noble Lords, raised issues of process. Contrary to his disappointing assertions that they were ignored by the committee, they clearly were not. The House voted by 78 to 101 that the commissioner had failed to comply with paragraph 21 of the Code of Conduct, which requires her to act in accordance with the principles of natural justice and fairness, but gave no direction on what should happen next, other than that it should be remitted to the committee and it was for the committee to look at the matter. The committee did, at length and in full, and it has produced a further report, which endorsed our previous recommendation after further and detailed consideration, and which it asks your Lordships’ House to consider and accept today. These issues were re-examined by the committee. The noble Baroness, Lady Shackleton, said that the committee investigated. No, it did not; it was an independent investigation by the commissioner appointed by this House.
I was extremely disappointed by the comments made about the qualifications and experience of the commissioner and I am glad that they have been redressed today. The noble Lord, Lord Pannick, said that he considered such criticism of the commissioner appropriate. To criticise her qualifications and experience is not appropriate. I was on her appointment panel, as was the noble Lord, Lord Newby. If people have concerns about those aspects, they should criticise the noble Lord and me, who continue to have full confidence in the commissioner and her work.
The debate of 15 November has been given extensive consideration today, but it went way beyond what many of us considered appropriate or necessary for the matter being discussed. As the noble Lord, Lord McFall, said, Lord Lester was referred to several times during it. Lord Lester has an enviable professional reputation and his work is held in high regard, as was rightly referred to in the debate. However, the complainant, Jasvinder Sanghera, also has an excellent and impressive professional reputation, but that was not acknowledged and it must be today.
I want to reflect on two or three things that have been said in your Lordships’ House today. My noble friend Lady Kennedy of The Shaws correctly identified the problems of sitting in judgment on friends and colleagues. That is why we have a process of independent, thorough investigation by the commissioner. We have also to consider our role in your Lordships’ House. The noble Lord, Lord Pannick, who criticised the commissioner’s report, has not only been a personal friend of Lord Lester—we all understand the pressures that brings—but acted as judge and jury on the decision, was a lobbyist for him, wrote newspaper articles putting the case for him and was an advocate for him in this House. There is an issue about process and procedure that has to be questioned: being judge, jury, advocate and lobbyist for an individual who is a friend and a Member of your Lordships’ House does not seem appropriate.
The noble Lord, Lord McNally, in a somewhat embarrassing speech, talked about the wrong process. What else was the complainant to do? How else is somebody supposed to make a complaint? If the process is not perfect, are they to stand back and not make a complaint? It is right that people should feel that they can come to your Lordships’ House and make a complaint when appropriate. Comments have been made both today and previously about how women who have been the victims of harassment or abuse should behave. There is no blueprint that says, “If this has happened to you, this is how you must behave”. The commissioner has used a process in her investigation. The noble Lord, Lord Pannick, referred to a book being signed affectionately. Women across this House will tell you that such behaviour is not abnormal where people feel uncomfortable after somebody has harassed them or behaved inappropriately towards them but go on to have a professional relationship with them, particularly if it is in public. Others said, “I’ve never heard anything like this before”. Sometimes our friends behave inappropriately. That is exactly why professional investigators are required; it is not a decision just of your Lordships’ House.
The noble Viscount, Lord Hailsham, referred to the 1999 committee on parliamentary privilege. I said in my intervention on him that the report was on a matter relating to the contempt of Parliament, which is an imprisonable offence. That is why the standard of investigation should be higher than for an internal disciplinary matter.
We came back to the cross-examination or inquisitorial process. The noble Viscount eventually had to admit that he had not read all the transcripts, I think he said. My understanding is that only two Members of your Lordships’ House asked to see the transcripts at all. The transcripts, which members of the committee and I have read, clearly indicate an inquisitorial process by the commissioner to do justice to the evidence and test the information given to her.
The Senior Deputy Speaker
My Lords, it falls to me to respond briefly to the debate. At the outset, I acknowledge how difficult this topic is for all of us. It is not a subject that any of us would wish to be debating today or any day. I shall pick up a number of points. First, yes, I received the email from the noble and learned Baroness, Lady Butler-Sloss.
The Senior Deputy Speaker
Perhaps it was translated into an email as well, but I read it. In fact, I read it again in the Times of 13 December and I read the reply of the noble Baroness, Lady Jay, of 15 December. Then, this morning at 5.30 am, I read the reply of the noble Lord, Lord Thomas of Gresford. What does that indicate? It indicates that there is a lively debate. The point that the noble and learned Baroness is making, on procedure, is for the future, and she can be assured that it will be taken on board.
The noble Baroness, Lady Jones, asked about access rights for Lord Lester. That is a matter not for the Privileges and Conduct Committee but for the House of Lords Commission, which will meet on Wednesday.
The noble Lord, Lord Butler, asked about procedures. The role of the House is to satisfy itself that its own procedures are set down in the code and the guidance to be followed. Those procedures were established in 2009 in the Leader’s Group by the noble and right reverend Lord, Lord Eames. Since then, I believe that there have been seven revisions and, as has been mentioned, when there is a general election we have to sign up to that code. So since 2009 there have been 10 opportunities for people to comment on the procedures. Given the highlighting of the debate here, I urge Members to put their comments in, because the Privileges and Conduct Committee will be looking at the independent complaints and grievance procedure recommendations in the new year.
Lord Butler of Brockwell
Sorry to interrupt the noble Lord, but is it not the point of the Motion today to approve the report on Lord Lester? It is not about future procedure.
The Senior Deputy Speaker
There are two issues here. There is a point about future procedure and shall deal with that. Separately, there is the Motion to approve the P&C report today, which I hope people will agree to. Those two issues are very separate.
Lord Foulkes of Cumnock
Can the noble Lord confirm that it will be a comprehensive review and reassure the noble Lord, Lord McNally, that it will not just be a tweaking?
The Senior Deputy Speaker
Absolutely, it will be a comprehensive review. By the way, I give a general invitation to every Member here to write to us with their views on that. I look forward to an avalanche of comments in the next month or so. Looking at this issue, it will most definitely be a comprehensive review.
Baroness McIntosh of Pickering (Con)
Will the noble Lord explain whether other complaints presently on the table against Peers in this House will be determined according to the same rules as the report before the House today?
The Senior Deputy Speaker
I have no knowledge of any complaints against other Peers in this House. I make that clear.
I mentioned the noble and right reverend Lord, Lord Eames, who established a concept of personal honour. That concept is central to this debate. In elaborating on that, he mentioned words such as selflessness, accountability, integrity, openness, objectivity and honesty.
To conclude, we are dealing with two individuals who are both eminent and respected in their fields, as I said previously. As the noble and learned Lord, Lord Mackay, said on 15 November,
“the most severe burden that anyone has to carry is adjudicating upon the conduct of our fellow citizens”.—[Official Report, 15/11/18; col. 2017.]
I know from Members’ comments to me that they have found this painful and distressing on occasion. The Independent Commissioner for Standards, the sub- committee and the Committee for Privileges and Conduct carried out their difficult task dutifully. The commissioner, an experienced lawyer and investigator, as well as a mental health tribunal judge, carried out her task precisely as laid down by the code and the guide that the House designed and agreed to. Each Member signs up to the code and the guide at the start of each Parliament. We must remember that, unlike the House, the commissioner had the unique advantage of seeing, interviewing and assessing the complainant and Lord Lester.
This is the redacted material, which every Member was invited to read before the first meeting. No one took up that invitation. We reiterated the invitation and two individuals have taken it up. I know that one Member has contacted the office to say that they would like to take it up on Wednesday. I invite all other Members to come along after this if they wish to see this material, because it is detailed, comprehensive and fair to both parties. That invitation is open.
Lord Faulkner of Worcester (Lab)
I was one of the two Members who asked to see the material. The point that has not been made today is that the material contains the contemporaneous witness accounts of what happened in Lord Lester’s house. I found that evidence absolutely overwhelming and persuasive. I join the noble Lord in inviting other Members to read it as well.
The Senior Deputy Speaker
The noble Lord said that there were six contemporaneous witnesses. We invite Members to read their accounts.
In her own words,
“on the basis of the strong and cogent evidence of the complainant and her witnesses”,
the commissioner found that Jasvinder Sanghera was a victim of sexual harassment and that Lord Lester was guilty of a grave abuse of power. The Committee for Privileges and Conduct reviewed and endorsed this view. We ask the House to do the same. I hope the House will now agree to this report.
Motion agreed.