Baroness Manningham-Buller
That the Report from the Select Committee Review of the Code of Conduct and the Guide to the Code of Conduct (4th Report, HL Paper 66) be agreed to.
Baroness Manningham-Buller (CB)
My Lords, this report is the culmination of the Conduct Committee’s review of the Code of Conduct and the Guide to the Code of Conduct, launched last spring. We chose to embark on this review—and sometimes I wondered whether that was a wise move. We were not asked to do so by Members of the House and were not required to do so by others, but we felt that it was the right thing to do. The existing code is 15 years old, and I hope the House agrees that we have made a number of improvements to it.
I start by thanking the committee—Peers and lay members—for their work on the report and, of course, the staff of the House who gave us wonderful help. It was clear, as we began to take evidence, that many Peers had not actually read the code, and I do not altogether blame them: it was too long, a bit repetitive and parts of it were very unclear. But we have been helped by the comments and thoughts from the debate in the Moses Room in October and from extensive evidence given to us by noble Lords, in person or in writing. I am not just being polite—that has been immensely helpful to us—although, going on, I will try to be polite.
I am also grateful for the feedback that we have had since the report was published. I have spoken to many noble Lords individually and to the main parties. Of course, we are not satisfying everybody. We cannot. There is a price paid when you try to achieve compromise, but I sense, from the feedback that I have had, that there is widespread understanding of and support for the report.
At this stage, I remind noble Lords that our aim was to simplify and clarify the rules. We have tried to make them shorter, clearer and less bureaucratic. We have also sought to uphold the current code’s twin objectives. I will quote them:
“to provide guidance for members of the House of Lords on the standards of conduct expected of them”
and—this is important but has sometimes been overlooked—
“to reinforce public confidence in the way in which members of the House of Lords perform their parliamentary duties”.
These two objectives were the test for every change that we considered. We asked ourselves, “Is this helpful to Members?” Secondly, “Does it reinforce public confidence in the House?” Sometimes those questions yielded different answers, so we had to strike a balance.
I shall give the House one example: the registration of non-financial interests. Public confidence in the House requires transparency over Members’ outside financial interests; I think we are probably all agreed on that. If Members failed to disclose outside employment or other major financial interests, that would undermine public trust and confidence in the House. However, the public interest in requiring the disclosure of Members’ unpaid roles—for example, with voluntary or charitable organisations—is far less clear. Over the years, the rules governing non-financial interests have become wider and more complex, resulting in several Members falling into inadvertent breach. We want Members in this House to have a wide range of interests, so this is quite a difficult area.
We concluded that the bureaucratic burden of the rules on declaring non-financial interests was disproportionate when compared with a small potential benefit to transparency. We therefore recommended ending the requirement to register and declare non-financial interests. Members will still be able to declare them in debate, if they are relevant to the matter under discussion and if time allows, but in our view that is not an enforceable rule.
I have dwelt on that example of our thought processes to try to help the House to understand why we have made the changes that we have. We went back to first principles, restated the most important rules of conduct as clearly and as succinctly as we could—noble Lords will notice that the code and the guide are substantially shorter—while stripping away rules that we considered disproportionate. Noble Lords have had the chance to read the report and the new code and guide, so I am going to touch on only a few key points.
On enforcement, we have introduced a minor cases procedure to allow the commissioners quickly to dispose of allegations of minor technical breaches, the details of which will be published only once the case has been resolved. We have restated in the code that, in investigating alleged breaches,
“the Commissioner and the Conduct Committee must … act in accordance with the principles of natural justice and fairness”
We have made it clear, as has been the case for many years, that Members under investigation are entitled to consult friends or advisers, including legal advisers.
The noble Viscount, Lord Hailsham, would go further, requiring the Conduct Committee to reverse its conclusion in paragraph 38 of the report and instead proposes a wholly independent investigatory and decision-making process with no Member of this House or any Conduct Committee report. I am grateful to the noble Viscount for letting me know last year that he was going to raise this issue. But my view, and that of the committee, is that this proposal strikes at the heart of the House’s culture of self-regulation. It would take the regulation of a Member’s conduct away from that Member’s peers, entrusting it instead to a quasi-judicial process with full cross-examination by lawyers, presumably representing both sides. The process would be long and more costly, and would deter some victims, in particular of bullying and harassment and sexual misconduct, from coming forward.
Over the years, many legally eminent Members of this House, former Lord Chancellors and Supreme Court justices, have sat on the Conduct Committee and its predecessor committee, which I chaired at one stage, including two former chairs: the late Lord Brown of Eaton-under-Heywood, and the noble and learned Lord, Lord Mance. The committee that undertook the review also included three KCs, including a former law officer, the noble and learned Lord, Lord Garnier. These committees over the years have all rejected calls for a fully adversarial system, and the House has just as consistently agreed with its committee. Of course, it remains a matter for the House, but I hope that the noble Viscount will not press his amendment to a Division.
Returning to the report, I have not got much more to say, because I know the time is tight. The committee resisted calls to extend the code further into Members’ non-parliamentary lives. We understand that, in a small handful of cases, Members’ behaviour in their private lives has hit the headlines, creating a perception that the House’s reputation has been damaged. But we need to be clear that the purpose of the code, consistent with the principles of self-regulation, is to help the House in regulating Members’ parliamentary conduct. Members are not full-time; they have jobs and lives outside the House, and we need to respect that separation.
Similarly, we have restated again the existing protections for Members’ freedom of speech. The code is clear that the constitutional principle of freedom of speech in parliamentary proceedings is a primary consideration, and the enforcement procedure underlines that policy matters or Members’ views or opinions wherever expressed, whether inside or outside the House, are not within the commissioner’s remit.
Before concluding, I turn to the amendment tabled by the noble Lord, Lord Hamilton of Epsom. He does not seek to reject the report in its entirety but would instruct the Conduct Committee to bring forward proposals that would
“remove the entitlement of members of either House to bring complaints of harassment against members of the House of Lords”.
The amendment would therefore exclude a relatively small group of people, Members of one or other House, from the possibility of making a complaint of alleged harassment by a Member of this House.
This strikes at the heart of the changes and improvements in the culture of Parliament that have been made since 2017, when the then Prime Minister, the noble Baroness, Lady May of Maidenhead, personally intervened to support the establishment of an independent complaints and grievance process. That led to the behaviour code agreed by both Houses, which protects everyone who works here. I remind noble Lords of the original mandate, which was for a behaviour code that applies to all persons working for or within Parliament. The amendment of the noble Lord, Lord Hamilton, would create a situation in which Members of this House could still bring complaints of harassment against MPs, but MPs could not complain against Peers. I doubt that the Commons would stand for that. So we risk a tit for tat and a potential unravelling of the behaviour code.
Harassment in the workplace is unlawful. The offence is defined in Section 26 of the Equality Act 2010. I do not believe that a Member of this House who is subject to harassment by another Member should be deprived of the right to complain about unlawful behaviour. I shall listen to the noble Lord but if he presses his amendment to a Division, I hope the House will strongly reject it.
Finally, what will happen after today’s debate? If they are agreed, the new rules will come into effect on 5 April and new versions of the document will be available then. Members’ entries in the Register of Lords’ Interests will be automatically updated to reflect the simplification of the registration categories. No action is needed by Members on this point.
I look forward to the debate and, with that, I beg to move.
Amendment to the Motion
Viscount Hailsham
Leave out “agreed to” and insert “referred back to the Committee with an instruction that, in place of paragraph 38, the Committee bring forward proposals giving effect to the following: that the facts and the recommended sanction should be determined by an independent tribunal; that the member should at all times be entitled to legal or other representation; and that the representative should be entitled to cross-examine witnesses and make submissions.”
Viscount Hailsham (Con)
My Lords, in speaking to the amendment in my name and in response to the question posed by the noble Baroness, I begin by saying that it is not my intention to divide the House.
The report before the House reaffirms the House’s commitment to the inquisitorial method of dealing with complaints and rejects the adversarial system. Its position is fully summarised in paragraphs 36 to 38 of the report, to which I shall very shortly return. I disagree with that conclusion.
The report’s conclusion is wholly inconsistent with the procedures that Parliament has, by statutory instrument, imposed on all the professions that I have ever encountered. Since 2010, I have practised exclusively as a legal assessor—that is, a legal adviser—to the panels which regulate doctors, nurses, midwives, social workers and all the professions which fall under the supervision of the Health and Care Professions Council. I have done hundreds of days of that work since 2010, all at appropriate times, duly registered.
As to purposes and consequences, there is no serious distinction to be made between the regulation of the conduct of Members of this House and the regulation of the conduct of members of those professions. All those professions are required by Parliament to use as an essential part of their regulatory procedures the adversarial system, which is rejected in the report. The decisions as to fact and sanction in those jurisdictions are all made by an independent tribunal. The respondent in all those jurisdictions is entitled to full legal representation, including the right for the representative to cross-examine and to make submissions.
The role of the regulator is a limited one. The regulator acts as an investigator into the complaint, and if the regulator concludes that there is a prima facie case, its role is to present the case before an independent tribunal, often by means of a lawyer instructed for the purpose. The regulator is not the arbiter of either of fact or sanction and, in my view, the commissioner’s role should be similar and limited.
The report suggests that the adversarial system, in particular the cross-examination of parties and witnesses,
“would result in a long-drawn out and expensive process … undermining … the principles of natural justice and fairness”.
That sounds to me awfully like an argument for putting convenience before justice. To be fair, other criticisms are made in paragraphs 36 to 38.
The problems encountered with regard to complaints and to the proceedings against Members of this House are precisely the same as those encountered in all the jurisdictions to which I have referred—indeed, in most other legal interparty proceedings.
Relevant concerns—and there are concerns—can be and are met by a number of special measures, which time prevents me articulating. In all those other jurisdictions, complaints are often made by one colleague against another or by an employee against a superior, but such problems are not a barrier to effective regulation.
There is no time in this debate to argue in detail the merits of the adversarial system, so I shall conclude with this general assertion. There must be a presumption in favour of the House following in its own procedures the procedures that Parliament has imposed on everybody else. I suggest that only the most powerful arguments should displace such a presumption, and I cannot identify those arguments. Therefore, I believe that this House should adopt the procedures that Parliament has imposed on everybody else. Although I do not intend to divide the House, I beg to move the amendment standing in my name.
Lord Hamilton of Epsom (Con)
My Lords, first, I congratulate the Conduct Committee on reducing the amount of the Code of Conduct by 30%. If this lesson was followed in other areas by Whitehall, we would have less legislation to worry about. Perhaps the team that has done this might offer its services to other departments.
It is also very sensible that it has been decided that the Code of Conduct should not compel people to register their interests when they are unpaid and charitable. Having said that, I sincerely hope that noble Lords will declare their interests when they are trustees of a charity, because it adds to the authority with which they speak on the subject. Although it will not be compulsory, I like to think that people will continue to do that.
My amendment is basically designed to remove harassment from the charges that can be brought by one Member of Parliament against another. The noble Baroness, Lady Manningham-Buller, has made the point that this would then mean that a Member of your Lordships’ House could sue somebody in the Commons. I hope that, if by the use of this for party-political purposes it completely discredits the code, we might actually see the other place amending its way of doing business in the same way as I rather hope we might amend our way of doing business.
The wording of my amendment is worked out to completely exclude members of staff, and it does not include sexual harassment and bullying, which is very important. The real problem is that the Oxford English Dictionary is quite clear in saying that “harassment” means “trouble by repeated attacks”, which means that there must be more than one occasion on which the particular offence is committed. The noble Baroness has made the point that much of the code is lifted from the Equality Act, but there is no mention in the Act of redefining harassment, as it is in the Code of Conduct, to being down to an isolated incident. We therefore have a tremendous problem here with the definition of “harassment” in the beginning.
The recent case, which has been alluded to, of my noble friend Lady Meyer, was by anybody’s estimation a single incident, and I do not think you can apply harassment in its understood terms to that case. On top of that, I have talked to a number of lawyers in your Lordships’ House and they think that that case would have been dismissed by a court of law as being trivial. I do not think we are in the business of treating Members of your Lordships’ House more harshly than a court of law would. I am not here to reopen the case—I am not trying to do that—but I hope we can learn a few lessons from the cases that have happened.
There is no doubt in my mind that the code of conduct, as it is now worded, is leading to miscarriages of justice. We should be very mindful of this and of the problem that, actually, there are party-political politicians in your Lordships’ House. I was recently told by a noble friend that people are now refusing to go on parliamentary trips, or indeed share a taxi, with a Member of an opposition party, in case that can be used against them. This is a problem. If the onus is put on the complainant to say that they have been upset by some remark that somebody has made, this can be exploited very much in terms of party-political advantage. I do not think that is what the code of conduct is involved in at all.
Under the code of conduct, complaints can be brought for four years to the Commissioner for Standards and, therefore, it could be possible to stack up a number of cases that then emerge just before a general election and could be used for party-political advantage. I do not think that is how the code of conduct should be abused, which is why I am putting my amendment to the House today. I hope that the noble Baroness will seriously consider the dangers of the wording of the code of conduct, as it now is, because it could be badly abused in the future.
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, the Motion in the name of the noble Baroness, Lady Manningham-Buller, has been moved, as has the amendment in the name of the noble Viscount, Lord Hailsham. The noble Lord, Lord Hamilton, has spoken to his amendment. For the remainder of the debate, the advisory speaking time is four minutes, and I ask all noble Lords to adhere to that. After three minutes, they should start making their concluding remarks and, at four minutes, their time is up.
Lord Newby (LD)
My Lords, I congratulate the noble Baroness and her committee on their work in reviewing the code of conduct and the manner in which they did it. It was a privilege to give evidence to the committee, and I was extremely impressed, though not surprised, by the care with which it approached its work.
The committee had two overlapping tasks, the first being to streamline the code and guide to make them clearer and less ambiguous. By reducing its length by 30% and simplifying the language, it has clearly achieved this. It also had to deal with several substantive issues on which there is no consensus in the House—here it was impossible for it to please everybody. For myself, I wish it had dropped the reference to “personal honour” and brought in an offence of bringing the House into disrepute. I was one of those who, to quote the report, thought that the term was
“hard to understand and archaic”.
But I was given the chance to argue that case before the committee, and I simply failed to convince it. So it was with other Peers and other topics. But the committee weighed my evidence and all the evidence it heard, and reached its own conclusions, as it was tasked by the House to do. That is why I will vote for the report and do not support the amendments today.
The noble Viscount, Lord Hailsham, has argued for an independent tribunal and legal representation. The report, having considered the case for an adversarial system, rejects it on the grounds that he quoted: that it
“would result in a long-drawn out and expensive process, potentially undermining rather than promoting the principles of natural justice and fairness”.
As opposed to the noble Viscount, I agree with that conclusion and so cannot support his amendment.
The noble Lord, Lord Hamilton of Epsom, wishes to amend the code to prevent Members bringing complaints of harassment against other Members, for the reasons he has just enumerated. I completely disagree with him. Harassment is a serious offence, and standards of acceptable behaviour and what constitutes harassment have changed for the better, in my view, over recent years. To accept the noble Lord’s amendment would tolerate behaviour that is intolerable, and it would be an extremely retrograde step were the House to agree to it.
Neither do I recognise that there have been any miscarriages of justice in the past relating to this issue. His suggestion that the code could be abused for party-political advantage is simply implausible. If anybody were to try this, I am sure that they would be given extremely short shrift.
I urge the House to support the Motion to approve this report, reject the amendments and thank the noble Baroness for her extremely distinguished stint as chair of the committee.
Baroness Donaghy (Lab)
My Lords, I chair the Steering Group for Change, which advises and supports the House of Lords Commission and the management board on continued efforts to improve the workplace culture of the House. We create a space where Members and staff can work together in an open and collaborative way. The effectiveness of the House of Lords relies on strong working relationships between Members of the House and the administration to strengthen the House as an institution. It also has the potential to build positive public perceptions of this House.
The steering group considered the recommendations of the review. We are grateful to the chair of the Conduct Committee, the noble Baroness, Lady Manningham-Buller, for attending our meeting last week, and to the Conduct Committee and its officers for the enormous amount of work carried out to produce this substantial report. We see this as a protection for Members and not a threat. It will reassure staff that everyone on the estate will be treated equally, and it will be a signal to members of the public that we have a fair, independent and robust system for dealing with conduct issues.
The right revered Prelate the Bishop of Derby, who is a member of our steering group, had originally intended to speak but cannot because of family health. She has asked me to say on her behalf:
“My own expectation that in this place of work, that having a robust code backed up by clear guidance is really important for the expression of the culture of who we want to be, expressed in the way of how we’re going to do it, and that is important for every person at every point of this organisation and it should just be a given”.
The amendment from the noble Lord, Lord Hamilton, to prevent Peers submitting complaints against each other would go against the grain of equal treatment for all on the Parliamentary Estate. It would drive a coach and horses through the behaviour code. Of course there are risks that a complainant might be playing politics. That is why we have independent and impartial commissioners. Members of the Conduct Committee are not naive about the political nature of our work. That is why the three main parties and the Cross Benches are represented on it.
Finally, on the amendment from the noble Viscount, Lord Hailsham, to introduce an adversarial system to deal with conduct issues, this has been considered many times before and rejected consistently by this House. It would put us at odds with the House of Commons, the Scottish Parliament, the Senedd and the Northern Ireland Assembly. My concern is also echoed in the words of the noble Baroness, Lady Manningham-Buller, that it would increase the length and expense of investigation. I hope very much that we will give wholehearted support to the Conduct Committee’s report and our thanks to the noble Baroness for her most distinguished chairing of this committee in the last few years.
Lord Forsyth of Drumlean (Con)
My Lords, it is a pleasure to follow the noble Baroness, who is very wise, and to echo her remarks about the noble Baroness, Lady Manningham-Buller, who is a glutton for punishment; she actually extended her term of office in order to deal with this issue and it is a very important issue.
I am sorry that we have only four minutes—although it is advisory—to discuss very important questions. I have a number of comments, which I hope the committee might give consideration to. First, what is the definition of a “minor case”? It is not clear from the report to what that relates. Secondly, the idea of extending the terms of appointment to six years, although not really a matter for the committee, is undesirable.
My main concern is the extension of the committee’s remit into social media. In particular, I find some comments from the report quite worrying. For example, paragraph 24 says:
“as a self-regulating chamber the House of Lords has the right to determine that egregiously offensive statements made by its members on public-facing social media may in certain circumstances fall within the scope of the Code”.
It is hard to argue with that in principle. I do not do social media, because I think that it is a revolting place and what people say about each other is not to my taste, but the idea that the committee should get involved in social media is a very big step. To be fair, the report hedges around the circumstances, but the hedging is rather vague and it needs careful consideration.
My other point is that, although it is fantastic that we no longer need to declare a non-financial interest, the report makes it quite clear that getting up and saying, “I refer to my interests in the register”, which people in this place do every day at Question Time, is a breach of the code. However, they are still required to continue to declare their financial interests. I do not think that is practical. Question Time is already difficult because some people make very long questions or give very long answers—or responses to questions, certainly. Having to declare an interest at Question Time without being able to say, “I refer to the register”—it is a waste of time anyway, because nobody has a clue what is on the register—would just extend the length of Question Time. That should be given further consideration.
Paragraph 49 relates to Members who have left the House. The suggestion is that, if a former Member were to breach the rules, it would be for the commission or the Clerk of the Parliaments to use their powers. I mean no disrespect to our distinguished clerk, but I think it should be for the commission and not for the Clerk of the Parliaments.
The noble Baroness and her committee have produced a document in which I can pick holes, but it is a great leap forward from what we had before. They took evidence—I gave evidence—and they considered it very carefully. It would be quite wrong for the House not to support this unanimously and with great gratitude to the noble Baroness and her committee for their work, which cannot have been easy.
Baroness Deech (CB)
My Lords, even to the best behaved of us, the mention of a Code of Conduct investigation sends a shiver down the spine, because there are grave consequences in the world these days related to offences that might have been settled privately and amicably years ago: there is great publicity and the damage is long lasting.
Incidentally, I was once chair of the Bar Standards Board, which investigated the behaviour of barristers. It was a complex, nuanced, layered procedure but, for those reasons, I quite agree with the noble Viscount, Lord Hailsham, that regulation needs more independence than is being granted in this revised charter.
As far as substance goes, I am puzzled that bullying, harassment and sexual misconduct are regarded as so much more serious than other offences that they get separate treatment in the code and that there is no longer any limit at all on reporting sexual misconduct, even years ago. Are these offences really worse than violence, lobbying, financial misconduct and lying, especially as the latter group are more likely to affect people in the outside world?
I continue to think that the rules of natural justice are insufficiently taken account of, with reference to my time as chair of the Bar Standards Board. The general definitions of natural justice are wider than those put forward in the report and would include avoiding any perception of bias on the part of the judge, full disclosure of all the interests of the commissioners and that the person complained against should be able to challenge the evidence and have access to all the documents involved.
The case for legal representation is difficult, but today it is much stronger than it used to be. Just because the Committee for Privileges took a narrower view of the definition of natural justice some years ago, that does not mean that it was the right outcome. I do not see why we should be more hesitant in facing up to challenges of all sorts than the public are expected to be, so I suggest adding an explicit right to see all the documents and to have a lawyer speak for you at the hearings.
The problem with the system now, comparing it to natural justice, is that it is one commissioner only who decides whether or not to investigate, carries out the investigation and decides, like a judge, what the consequences and the punishment should be, and the allegation need be proved only on a balance of probabilities. It is time now to bring those procedures into line with natural justice to a greater extent.
One ambiguity needs to be clarified relating to the rule about the use of facilities, such as one’s office, primarily—whatever that amounts to—for parliamentary purposes. It is widely accepted that at home one has to use one’s own facilities, such as computing, research, book purchase and so on, for parliamentary duties, and people may be paying researchers and assistants from their personal income, because if you live out of London the daily allowance will not stretch that far. As a reciprocal measure, I would have thought it permissible to use one’s office here for office purposes, whether parliamentary or otherwise, especially if, as a non-Londoner, one has no other office facilities to hand. I hope that there is some sympathy for a broad definition of what may be allowed in one’s office on the parliamentary estate.
Lord Garnier (Con)
My Lords, I will not repeat what the noble Baroness, Lady Manningham-Buller, has already said in opening this debate, nor do I have time, sadly, to comment on the two amendments moved by my noble friends Lord Hailsham and Lord Hamilton of Epsom.
That said, I doubt that the noble Baroness elbowed her way to the front of the queue to chair the Conduct Committee, but we should be grateful to her that she was persuaded to take on the job. As a member of the Conduct Committee, I saw at first hand her skills as a leader, as a negotiator, as a manager of expectations and as a catalyst for consensus. Perhaps more importantly, I saw her as someone who cares deeply about fairness and justice. This new, shorter, decluttered, comprehensible code of conduct and guide are as good as they are very largely because of the noble Baroness, but I must also expressly thank the clerks to the committee, whose advice and drafting skills were of the highest quality. This House is in their debt.
As a member of the Conduct Committee from January 2022 until January this year, I heard many anxious but also perplexing contributions to the debate, outside the committee’s formal sessions, about the rules of conduct for this House. Happily, the evidence that we received in the committee—before the general election last year, I chaired some of the evidence sessions—from the party group leaders, including my noble friend Lord Forsyth, from the then Leaders of the House and of the Opposition and from the Convenor of the Cross Benches, as well as from outside interested parties, was universally thoughtful and helpful in informing our deliberations and conclusions.
Revising the code of conduct is not a mass participation activity. Despite affecting every one of us, the revision excited relatively little interest, perhaps because very few Members of this House breach the code. Most of us do not know who the commissioners or the members of the Conduct Committee are, be they Peers or lay members. It was therefore unsurprising that, despite reminders, only a handful of your Lordships responded to the call for evidence, but we were very grateful to those who did.
In my time on the committee, we had to deal with only a small number of breaches of the code. The overwhelming majority of us in this House are polite, kind, honest and decent towards each other and to those who work with us in Parliament. The exceptions were rare, but even then we were not dealing with people who were irredeemably bad. Mistakes happen. Technical breaches of the code occur. Things are said that, on reflection or earlier in the day, would not have been said. Most who were found to have broken the code accepted that they were wrong, were contrite and apologetic. I doubt they will do it again. On those occasions where we were concerned with more serious breaches, the problems not infrequently arose from diminished capacity and the afflictions of old age rather than malice.
Furthermore, quite a few complaints made about Members of your Lordships’ House were trivial and vexatious. There was a small number of regular complainants and, if the new code is approved, we will have a better way in which to allow the commissioners to deal with those that do not affect innocent Peers or those who have committed only minor or technical infractions, which can be dealt with by correction of the register. Overall, the new shorter code is such an improvement on its predecessor that it ought not, I hope, to attract the criticism that the earlier version experienced.
I do not have time to identify the new changes, but I want finally to turn to the question of the lay membership of the Conduct Committee. There are strong views for and against their being on the committee and I will not speak to that question now, but lay members are appointed for six years, twice as long as our own three-year term limit. That needs to be changed. I found the lay members to be dedicated people who took their work seriously and responsibly, but I do not understand why their terms should be twice the length of our own.
Lord Lilley (Con)
My Lords, I, too, welcome the report, both for its brevity and for its rejection of the idea of introducing an offence of bringing the House into disrepute. But I want to raise some questions that I hope will be considered in any future review, though I do not want to go as far as directing the committee to do so in the way one of the amendments before the House proposes, even though I sympathise with some of its spirit.
I assume the original purpose of having a procedure for dealing with complaints about harassment and bullying was to protect staff, particularly staff who might face bullying by Members of this House who are in a superior position and a position, therefore, to use their influence wrongly. One would hope it would never happen, but if it does, it is right that staff should be protected. But I doubt if the aim or expectation was originally that it would be used to police verbal exchanges between noble Lords. Surely, the presumption is that we are old enough and sensible enough to deal with offensive remarks made by other colleagues without running off to teacher and saying, “Please, miss, Jimmy insulted me in the playground”. That should not be what the procedure is for.
There is a minor cases procedure, but any minor incident of harassment and/or bullying by one Member against another should not be brought. It is ridiculous that one Member should bring that sort of minor incident before this procedure. It is particularly wrong because the procedure itself can be long and damaging. You have a major punishment for a minor case, even if the outcome is effectively to exonerate the person concerned. The process can be the punishment.
I think it was the noble Baroness, Lady Donaghy, who I always assume is right—in most cases that has proved to be safe in the committees on which I have served with her—who said that it was unlikely that these procedures would ever be used for party-political reasons. I am afraid that that shows her good nature. In the other place—they have different rules, but their procedures are of interest—a Labour Member went through every interest held by every Conservative Member and saw whether they had been mentioned in debate where there was a possibility that there might have been a conflict of interest. Scores of people were brought before the commission. I was one, because I had not mentioned that I had an interest in a company that operated exclusively in central Asia, in a debate about domestic energy costs. I had not mentioned it because I did not think it was relevant. The commissioner said she entirely accepted that I had no conflict of interest but that I should have declared it because somebody might have thought I had a conflict of interest: unless I apologised to the House, she would take it to the full committee. I said I had no intention of apologising to the House except possibly for not realising that the commissioner could invent new rules that we had to declare interests we did not have.
This is the problem: rules constantly expand. I have to say I was entirely exonerated by the committee—it was the first time in its history that the recommendations of the commissioner were rejected. But it was brought for party-political reasons. There have been two cases recently before the House where, I understand, the person offended by an accidental insult originally graciously accepted the apology from the person who perpetrated it but then subsequently withdrew the apology and issued a complaint. The suspicion must arise that they had probably been pressed by rather more intransigently party-political colleagues to do so. We must not allow a situation to exist where party politics can be used to abuse a system that is ideally there to protect staff, not ourselves.
Baroness Fox of Buckley (Non-Afl)
My Lords, I offer my congratulations to the noble Baroness, Lady Manningham-Buller, on restoring some sanity. But time is limited, so plaudits are postponed. Instead, let me raise my reservations.
I am especially disappointed at the replication of existing rules on bullying and harassment, which are unfairly lumped in with sexual misconduct. What is more, all three are singled out as especially egregious, as we have heard. We are left with definitions of bullying and harassment that are unduly subjective, explicitly based on the perception of the person experiencing the conduct. That conduct can be one unintended isolated incident that may be “hidden or insidious”. Surely, we can see the dangers of such vagueness in the potential for inciting unjust accusations. For example,
“a person may also be harassed even if they were not the intended ‘target’ of harassment”.
This perversely creates a non-victim victim and facilitates weaponising accusations in bad faith—accusations impossible to disprove.
Am I being paranoid? Sadly, many of our public institutions, from universities to the Civil Service, are littered with recent examples of individuals accused and disciplined for bullying or harassment, based on offence taken to words or opinions due to the feelings of victims. But, subsequently, it has been revealed by appeals or employment tribunals that the allegations themselves—the very disciplinary processes—were the real perpetrators of bullying and harassment. Employers have been forced to apologise and pay damages, but this redress is not open to those found guilty by this code. I am glad the committee concedes
“the significant toll that investigations can have on members”.
So often, the process is indeed the punishment, as is evidenced by the hell to which those such as fully exonerated Professor Jo Phoenix or the Buckingham University vice-chancellor James Tooley can testify.
When the committee concludes that a minor-case procedure can now be used—guess what?—bullying and harassment are excluded from the proportionate response. Why? It is implied it is related to power imbalances. Interestingly, in the definition of bullying, we are told that power can equate to coercion through fear of intimidation. Fair point. But can we acknowledge that we live in a society that valorises victimhood—a cancel culture that promiscuously demonises others by labelling them as bullies and harassers? As such, the real power can reside in the hands of would-be accusers, because even the threat of an allegation of bullying can be career or reputation destroying. It is certainly intimidating—I am not even sure about saying this here, to be honest. I am not sure that denying the accuser the right to cross-examine their accuser helps, so I do have some sympathy with the amendment from the noble Viscount, Lord Hailsham.
Finally, the review deals intelligently with the distinction between parliamentary and non-parliamentary conduct and the need to ensure that expression of views and opinions falls outside the code’s remit. But there seems a fudge on social media, as we have heard. I am worried about the recommendations that text should be written that will state in terms what activity on social media may be dubbed parliamentary. What will that text say? This, combined with the way that definitions of bullying and harassment include that both can happen online via social media, means that, as the noble Lord, Lord Forsyth, has indicated, this could be a Trojan horse for dragging public non-parliamentary speech into scope. Can the noble Baroness offer reassurances that this is not the case? I am asking for a friend, of course.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I thank the noble Baroness and her committee for all the work they did. My few remarks are based on the work I undertook in the City, where I was involved in the first introduction of statutory regulation to what had hitherto been an entirely self-regulatory system. Over 30 years, the self-regulatory system was driven out by statutory regulation, and there are some lessons and some portents of what may lie ahead for your Lordships’ House.
I want to make just two very short points. The first is—this was said by other noble Lords—that we found very early on that, as regards codes and guides, less is more. People in the City are busy making money; people in your Lordships’ House are busy holding the Government to account. They do not have the time that they should have to read codes if they are lengthy: therefore, the shorter, the better. So I express my unequivocal support to the noble Baroness for the reduction in code length and guide length that the noble Baroness and her committee have undertaken and for focusing them. But, of course, I have to say, gently, that it is still over 60 pages long.
I am afraid my second point is slightly less obliging. I have had an email exchange with the noble Baroness, so she is aware of what I am going to say. Nothing that I am saying is about her personally: she has an unenviable role, as many noble Lords have said, and she has carried it out with dignity and efficacy. Nor am I attacking the commissioner and his staff, or indeed the other members of the committee.
What I want to draw to the attention of your Lordships’ House is the direction of travel in the code we are discussing today. As I see it, the challenge is set out admirably clearly in the code in paragraphs 3 and 4, where it refers to
“upholding the Code’s twin objectives”—
I understand that—and states:
“The Code and Guide face two ways … The House is self-regulating, but it exists to serve the public”.
Immediately, one has to realise that anything facing two ways will inevitably have some tensions between the two functions. In the City, we found that maintaining a self-regulatory element within a statutory function was impossible. Statute squeezed out self-regulation. That is something that I think is slowly, imperceptibly happening in the regulatory system of your Lordships’ House.
Some Members of the House believe that that is desirable and inevitable—indeed, the amendment from the noble Viscount, Lord Hailsham, takes us a further step down that road. But others may think that maintaining an element of self-regulation, of practitioner input, makes our disciplinary procedures more relevant and effective; and, further, that this is particularly true of a House of Parliament, a major part of whose role and work is undertaking the delicate task of balancing and reconciling conflicts of interest.
In 240 seconds, I cannot possibly hope to explain how one might reset the dial, but, if I had one sentence only, it would be that we may have forgotten the importance of the presumption of innocence—a point made by my noble and learned friend Lord Garnier. The code, as the law, is the protector of the reputation of the House and has to be obeyed. The guide, as the protector of Members of your Lordships’ House, needs to carry with it that presumption of innocence. Without it, Members of your Lordships’ House end up with the worst of all worlds: a system in which the inevitably somewhat fuzzy nature of the guide is investigated and enforced as if it were on a statutory basis, which is not a helpful way to proceed.
Let me end as I began. I am not attacking anybody; I am drawing attention to the direction of travel, which I think has its downsides. If my noble friend Lord Hamilton were to decide to divide the House, I would be inclined to support him.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I, too, welcome the report and support its recommendations. The commissioners as well as the committee are doing a good job, and in particular the chair, the noble Baroness, Lady Manningham-Buller, has been exceptional and will be a very hard act to follow.
That brings me to one of the recommendations on the rotation of Members. I believe that the automatic rotation of Members on all committees on a three-year basis is generally unhelpful to Members but a gift to the establishment. However, on the Conduct Committee in particular, it is especially damaging to the work of the committee, as outlined in the report, and I hope that the Procedure and Privileges Committee will accept the recommendation that it should be rescinded.
I also strongly support the committee’s view that it would not be appropriate to widen the application of the code beyond our parliamentary activities. In particular, it rejects the suggestion that it should be extended generally to posts on social media. I welcome this, as I know that there have been mischievous complaints against me and others by SNP activists, who I have designated as “cybernats”, because they disagree with my point of view. The irony is that my posts have all avoided any personal comments, whereas the responses have been full of abuse and have not dealt with the issues raised. So I hope that the committee will be careful in relation to any exceptions—and on this occasion I agree with the noble Lord, Lord Forsyth, and indeed with the noble Baroness, Lady Fox. Now there is an unusual occasion. In fact, I might be the friend that the noble Baroness was speaking about right at the end there.
All through the code and report, there is the correct presumption that our membership here is a part-time activity, regrettably. The House is not a Second Chamber with properly resourced full-time Members able to deal effectively with all the legislation and hold the Government to account, as is the case in Canada, France and many other places, where the senates do that. But that is an issue for another day. However, the nature of this House makes it strange that we have a code covering Members’ staff when there is no specific provision in the House for us to employ anyone. Although some of us do use our part-time allowance to do so, it is not easily done.
Lastly, I express my support for the committee’s recommendations on keeping the inquisitorial system. The introduction of an adversarial system would not only deter victims from making legitimate complaints but significantly lengthen the process, turning it into another gold mine for the lawyers. Indeed, I wondered whether the noble Viscount, Lord Hailsham, should have declared his interest when he moved his amendment. Incidentally, I was also wondering whether some of the Members who spoke in Monday’s debate on hereditary Peers were in breach of paragraph 14(b) of the code by not declaring their interest in doing so—but no doubt that can be looked at.
I conclude—well within the time, to please my Chief Whip, who I always try to please—by restating my support for the committee’s recommendations and hoping that they will be agreed unanimously.
Lord Balfe (Con)
My Lords, I start by pointing out that both Chief Whips have disappeared, which may be a reflection on this part of the speakers’ list, of course. I thank the noble Baroness, Lady Manningham-Buller, for the report and for the courtesy that she showed me when we met to discuss certain issues. Anything that I say is certainly not a criticism of her.
The redraft and shortening is overall a very good thing. The trouble with current documents is that they get longer and longer and more and more difficult—so I do welcome that. I also support the points made by the noble Viscount, Lord Hailsham, because these reports get published and then go immediately on the internet, and this is how people are then defined. One noble Lord who was sanctioned said to me that, when he went for an interview, he was confronted with the fact that he had supposedly breached the rules of conduct—well, not “supposedly”, because the Conduct Committee had found that he had breached the rules of conduct. So it is not a short-lived thing. The point that the noble Viscount, Lord Hailsham, makes is a very sound one, backed up by the noble Baroness, Lady Deech.
I also think my noble friend Lord Hamilton’s point is sound. I was appalled at the report on my noble friend Lady Meyer, where it seemed that a playground scrap had been elevated into a great controversy. It struck me that it was way beyond where the rules should have been applied. I wonder how many members of the staff of the House of Lords have been suspended for offences against their code and how many of them have been suspended without any pay, because that is what suspension does here.
I turn to the point about the House being in disrepute. Like the noble Lord, Lord Foulkes, I have also been on the receiving end of this. There is a regular little group of people out in the community, many of them with surnames that to me look very Ukrainian, who regularly protest when I speak about Russia. On occasion, they have even written to the leader of my group asking that I be thrown out. To the credit of the leader of my group, he refused to do so, particularly when I pointed out that, if he did do so, that would be greeted with great joy in Moscow.
The whole role of the committee needs reviewing. I would like to see an independent Members’ services committee that has this as part of its remit. The more that we build up committees that have nothing better to do than employ four experts on six-year contracts to look at the detail of Members’ behaviour, it is just not worth it.
What we should do is make much greater use of mediation. The report on my noble friend Lady Meyer need never have been written; the thing could have been solved by a process of mediation. We also need to open the hearings. I can see the danger of having them on the Floor of the House and the danger of having journalists there, but why should Members of the House not be entitled to attend hearings affecting their own colleagues? That seems quite reasonable to me, particularly if you have a confidentiality clause. So I would like the new committee to look at the impossible task of abolishing itself and the not-too impossible task of looking to use more mediation and other skills to solve problems.
Lord Skidelsky (CB)
My Lords, like other noble Lords, I commend the efforts of the noble Baroness and her committee to shorten and simplify the code and guide. That they have not altogether freed themselves from the bureaucracy involved in all this is more a sign of the times than of any lack of effort on their part.
I welcome the obligation to register non-financial interests and reduce registrable interests from 10 to seven, but I still struggle to understand the purpose of the register. This is a fundamental point. What is a relevant financial interest? The only guidance that we are given is what a reasonable person might find relevant, but that is very vague. For example, in what way might a reasonable member of the public think that my own occasional income from writing or lecturing might constitute a financial motive strong enough to influence my parliamentary activities—except, of course, for the better? Would the noble Baroness and the Conduct Committee consider transferring occasional income from category 1 to miscellaneous financial interest in category 7?
The Conduct Committee has taken on board criticisms of the Privileges Committee’s Standing Order 68, dated 2019, mandating that reports and sanctions from the Conduct Committee be decided without debate in this House. The Conduct Committee’s report says that it has considered whether to limit that prohibition to cases arising from bullying, harassment and sexual misconduct, and that is a step forward.
Allowing the House to question the judgment of the Conduct Committee in a particular case puts teeth into the otherwise empty declaration that the decision of whether to impose sanctions rests with this House. Unless a particular thing can be properly debated, that statement is empty or wafer thin. Will the noble Baroness tell us whether the committee is, in fact, asking the Procedure and Privileges Committee to scrap the prohibition on debating its reports in this House?
Thirdly, contrary to what noble Lords may believe, the Commissioner for Standards is not limited to investigating complaints. We have complaints, complaints, complaints, but it can investigate disclosures. That is wrong. An anonymous disclosure may trigger a process that ends in a sanction without any complaint having been made to the Commissioner for Standards. The investigatory procedure should be triggered exclusively by a complaint.
Fourthly, the report acknowledges but does not resolve the potential contradiction between the requirement for Members to act on their sense of personal honour and the reputational damage rule—a point raised by the noble Lord, Lord Newby. Behaviour that Members consider honourable may breach the sense and culture of the House. I repeat my complaint of October that the appeal to personal honour does no work in the code at all. A Member is required to follow the code irrespective of whether they think it is honourable for them to do so. If the committee wants to preserve the personal honour requirement, it must give up telling Lords what their personal honour should tell them to do.
Finally and fifthly, the report states:
“Whether conduct constitutes bullying will depend on both the perception of the person experiencing the conduct and whether it is reasonable”.
This is an incredibly slippery slope. If personal offence is inserted into the equation, it will inevitably crowd out the test of reasonable behaviour—we had an example of that recently. On this I agree with the noble Lord, Lord Hamilton.
Baroness Hoey (Non-Afl)
My Lords, I welcome this shortened version of the code, particularly the replacement of the original appendix B, which had ridiculous definitions that made it seem as if we were all living in some kind of red-light district. Can the noble Baroness clarify whether the commissioner will still be able to refer to appendix B if needed and, if so, why?
On bullying, harassment and sexual misconduct, I immediately want to separate staff from Members, because none of us wants ever to allow someone in a position of power to be able to get away with that kind of behaviour towards people who are employed here and do such a good job. But surely any kind of harassment, bullying or sexual harassment in this place can be dealt with by the Member who is the target of such behaviour. Are any of us not capable of calling out someone who behaves like that?
I am obviously from an older generation used to dealing with overt, unwelcome advances simply by telling the person where to go. Do Members of this House really need all this bureaucracy to deal with other Members’ bad behaviour? None of us here is a shrinking violet, frightened by their own shadow—but I appreciate that times have changed. If these clauses are to stay, I ask why it states that a person may be harassed even if, as the noble Baroness, Lady Fox, said, they were not the intended target of the harassment. What exactly does this mean? If someone is harassing me and I tell them where to go, the person sitting beside me can say that they felt harassed. This is getting ridiculous.
I welcome what seems to be a strong commitment to freedom of speech, but then, as others have said, paragraph 24 says that
“egregiously offensive statements made by its members on public-facing social media may in certain circumstances fall within the scope of the Code”.
Who is going to decide that they are offensive? I fear that this could be mission creep—a slippery slope to perhaps even beginning to police what is said in the Chamber.
The noble Lord, Lord Foulkes, has a habit of making disparaging remarks about those with whom he disagrees; sometimes he even mistakes brass for silver. But I do not want him to be stopped from doing that, because I would much prefer his Peers—rather than some commissioner—to judge whether his remarks tell us more about him. This is what we should have.
I want to stress this point on lay members, because it has not been mentioned by anyone. It says, in paragraph 26, that they
“bring a different perspective to the deliberations of the Conduct Committee, drawing on experiences derived outside the House”.
But it seems that all the lay members come from the same kind of human resources background. Some of them have made their living out of HR, and their everyday language can be alien to the experiences of many Members of the House. We are not a multinational business listed on the stock exchange, and human resources in this place cannot be seen in the same way.
Can the noble Baroness explain how these independents are selected and if there is an opportunity for men or women from a non-academic or non-university background, who perhaps worked in manual jobs, to be appointed? We might get some more common sense. Is there any reason why we cannot know how much the independents and the facilitators of the behavioural code seminars are paid? Incidentally, I am not sure that the seminars serve any valuable function.
I hope that we continue to review this code to ensure that we do not have huge numbers of vexatious complaints. We surely must avoid creating in this House an atmosphere of mistrust and the undermining of free speech.
Lord Shinkwin (Con)
I thank the noble Baroness, Lady Manningham-Buller, and the committee for the review of the code and the guide. I want to pick up on an issue that the noble Baroness, Lady Deech, touched on when she referred to how being notified of a Conduct Committee investigation sends shivers down the spine of a Member. I refer, of course, to an issue that affects many of us at some point in our lives, our mental health, and how it is addressed in the review. It is touched on obliquely, in both paragraph 58 of Annexe 3 to the review relating to the “Enforcement Procedure (General)” and paragraph 54 of Annexe 4 relating to the “Enforcement Procedure” specifically for bullying, harassment and sexual misconduct. Both state:
“Members can contact the Parliamentary Health and Wellbeing Service for advice, guidance and support with mental and physical health”.
Is that really adequate or appropriate when a Member is perhaps experiencing a mental health crisis at the prospect of their reputation being effectively trashed in the media or, indeed, as a result of that having happened—in either case, by virtue of their high public profile as a Member of your Lordships’ House, and thus being seen as fair game? I suspect that having to contact another body related to Parliament as a conduit to advice, guidance and support is the last thing that some Members would want or feel able to do when, for example, mulling over whether they have the mental resilience to make an appeal against the commissioner’s findings. This is important because a failure to do so can count against them and imply an admission of guilt.
I therefore wonder if thought can be given to establishing a source of support that is completely independent of Parliament from the outset and sensitive to the stress of public office holders with a high public profile, such as Members of your Lordships’ House. I make that suggestion not to imply that any of us are more important but because that high public profile increases our vulnerability to mental health challenges.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I give heartfelt thanks to the noble Baroness, Lady Manningham-Buller, and her committee. I am really pleased that the code has been revised in this way; it is in such good plain English and is more concise. I am grateful for her introductory speech explaining some of the tensions in reaching the conclusions. The code is a really important tool in protecting staff, Peers and the reputation of the House of Lords.
To fulfil these functions, we need to know when behaviour does not comply with the code, which is why I was so disappointed, but perhaps not surprised, by the Motion from the Conservative Peer the noble Lord, Lord Hamilton. It suggests that if we suffer or our colleagues suffer something that involves harassment, we should just keep quiet. That smacks, to me—and his noble friend Lord Lilley did talk about the schoolyard—of the worst aspects of English public school life. I had hoped that that was now a thing of the past in schools, but in the mind of the noble Lord, Lord Hamilton, not grassing on one’s fellows is more important than ensuring that intimidating behaviour is stopped.
Cruel or bad behaviour thrives in a culture of secrecy, and we should have none of it in this House. The code rightly lays down the need for transparency and due process, and I welcome that. I also welcome the presence of lay members of the Conduct Committee bringing their outside perspective to the House. Training is important, because times and social mores change, and Members do need to keep up. If we demonstrate that we have failed, like any decent workplace, we should offer training.
I wish, though, that the code should replace the wording in the first rule, “personal honour”. My noble friend Lord Newby mentioned this, too. I understand from paragraphs 56 to 60 of the review that this was an on-balance decision, but I feel the code would be less subjective for each Peer and stronger if it used “integrity” in paragraph 10(b), which is then further defined in paragraph 12(b).
We as a House have our work cut out to restore public confidence. In particular, I agree with the points made by the noble Baroness, Lady Deech, when she talked about financial impropriety being equally as important as our own behaviour, because that is the issue that the public outside are more concerned about.
I probably cannot talk about one of the ongoing investigations into a serious, possibly criminal, issue, but I am sure noble Lords know to what I am referring. The general point I make about this is that, when there appears to have been a breach of the code, a Member should not be able to avoid the processes of the code by quickly taking a leave of absence. Leaves of absence are for illness and caring for loved ones in extremis, not for avoidance of sanctions. There is a lot more that I might say about lobbying and profiting from being a Member of the House by being offered directorships et cetera that would not happen if one was still Mr Bloggs rather than Lord Bloggs. Of course, if we had proper reform and an elected House, that would deal with much of the issue.
I hope the committee will take on the very complicated issue and address some of these matters of financial impropriety and all the nuances around the financial implications that we have not had time to touch on today. In the meantime, this revised code is very helpful, and I hope that all Members will do their utmost to see that it is acted on.
Lord Swire (Con)
My Lords, with your Lordships’ indulgence, I shall raise a narrow point in the gap, one that I have already raised privately with the noble Baroness, Lady Manningham-Buller, on whose report I congratulate her, as I congratulate others who worked on it.
I made this point to the committee in written evidence, but I do not think it has been addressed. It falls under the category of natural justice and fairness and, in the interests of transparency, comes from first-hand experience as this is something that happened to me, virtually as soon as I came into this House. In fact, one colleague was amazed that it had taken me so long to be reported, whereas another was rather amazed that I had been reported so early on.
It was a vexatious complaint. I will name names, because this complainant, Dr Alex May, complains almost exclusively about Conservative Peers in this place. He made a complaint that I had failed to register an interest. I was able to provide clear and unambiguous written evidence that I had followed the register of Lords’ interests, with email evidence to support that. However, it was deemed of sufficient importance to escalate it to the Conduct Committee. The complaint was, perhaps inevitably, subsequently completely dismissed, and it was found that I had no case to answer.
My point is about the natural justice of that process. It is my contention that, to avoid vexatious complaints, when complaints are handled by the appropriate powers that be, they should be handled in privacy. It should not be announced at the outset that X is being investigated, because inherent in that is a presumption of guilt. Where is the presumption of innocence? By all means, investigate me, investigate all of us—that is only right and proper—but only when natural justice has taken place and the committee has found the person in question to be guilty should the announcement be made that X has been investigated and found guilty. If the individual is not found guilty because it is judged that there was no complaint initially to be addressed, there is no need to mention it at all.
In the cause of natural justice and the presumption of innocence, I ask the noble Baroness if she will look again at having these investigations in private until an announcement is made, if the individual concerned is judged to have fallen foul of any of the existing rules.
Baroness Manningham-Buller (CB)
My Lords, I thank noble Lords for all those comments. I will try and answer them all and, if I fail, that will not be deliberate. I am grateful for the kind personal comments; I am bathing in the plaudits from various sides of the House, and I appreciate that. However, this is also very much a matter for the distinguished members of the committee.
I am going to start with the comments of the noble Lord, Lord Hamilton of Epsom, the noble Viscount, Lord Hailsham, then I shall try to pick up on any that have not been covered, on topics such as social media, as we go through. I am grateful to noble Lords for taking these issues seriously and for the range and extent of their comments.
The concern of the noble Lord, Lord Hamilton of Epsom, that complaints of harassment by Members of either House may be politically motivated and used to embarrass opponents is a view shared by the noble Lord, Lord Lilley, and others. I assure the House that the members of the Conduct Committee are fully alive to the possibility of politically motivated complaints, as are the commissioners. We understand that we work in a political environment, and we have robust processes for identifying and rejecting frivolous or vexatious complaints.
I shall come to the issue raised by the noble Lord, Lord Swire, later on, but in truth I suggest that the risk he identifies is more imaginary than substantial. Paragraph 27 of the enforcement process says:
“No information will be made public unless or until a report is published”,
even if the commissioner launches an investigation. It is a confidential process, and if the complainant were to breach that confidentiality, they would, as paragraph 62 states, be committing
“a contempt of the House”.
When the commissioner’s report is ultimately published, it will either uphold or dismiss the complaint. If the complaint has been dismissed, the commissioner may withhold the name of the Member concerned or even decide not to publish a report at all. That has happened in the last year—not in the cases that have been mentioned today, though for obvious reasons I cannot go into detail—so I would argue that the scope to cause malicious political mischief is, in practice, very small. There is only political damage if the complaint is upheld and the Member is in fact guilty of harassment.
I would remind people—this goes to the point of the noble Baroness, Lady Fox—that, in the definitions of “harassment”, we are following Section 26 of the Equality Act, which defines it as “unwanted conduct” that has the “purpose or effect”, so it can be unintentional, of “violating” a person’s “dignity” or
“creating an intimidating, hostile, degrading, humiliating or offensive environment”
for them. Whether Members of the House like that or not, it is the law.
I suggest that all the amendment from the noble Lord, Lord Hamilton, would achieve would be to prevent genuine victims of such harassment from complaining— and, let me be clear, there are victims. Even though allegations by Members of either House against noble Lords are extremely rare, there have been some cases where serious misconduct has occurred. In some cases, the details are not in the public domain because the complainants wished to remain anonymous, but I assure the House that there have been serious cases involving noble Lords.
To go back to my opening remarks on the Behaviour Code, the principles of respect and courtesy are there for the entire parliamentary community. I say to the noble Baroness, Lady Hoey, and the noble Lord, Lord Lilley, that they are not there just for the staff, although that is an important component. They are there for the whole parliamentary community. If we start having carve-outs for particular groups, we risk unravelling the entire behaviour code. I hope that, if the noble Lord presses his amendment, the House will reject it.
The noble Viscount has clearly stated his case—indeed, he talked to me about it beforehand—and has been consistent in so doing. He has been supported by others, in particular the noble Baroness, Lady Deech. Nobody can doubt his honest advocacy of a wholly independent process with a strong legal flavour. In the end, it is up to the House to decide. It is not, in the end, up to the Conduct Committee. The Conduct Committee’s view is clear. What he suggests is very different from Commons procedures, for example, where you have three layers. First, the commissioners decide whether it looks as though the code has been broken. Secondly, there is the Standards Committee and, thirdly, the independent expert panel with no Members of the House of Commons on it. We could go that way, or we could go the way suggested by the noble Viscount, Lord Hailsham. My view is that the existing system is fair and provides natural justice, and I dispute that it has been otherwise. But, again, whether the noble Viscount wishes to withdraw his amendment is up to him.
I will try to read my scribbles on what other things were said, and I will try to answer them correctly. I hope I have answered the points made by the noble Viscount, Lord Hailsham, and the noble Lord, Lord Hamilton of Epsom. I of course contest his view that there has been a serious miscarriage of justice. The noble Lord, Lord Forsyth, raised a number of questions in his four minutes. I will start with one on social media, which was also picked up by the noble Lord, Lord Foulkes, the noble Baroness, Lady Fox, and others. What we think we are trying to achieve here—what we think we have done—is just to say what the existing arrangements are. I do not want to get into particular cases, but I will mention the case of the noble Lord, Lord Ranger, which some noble Lords may remember. He carried on a parliamentary discussion on social media with somebody he had met on the Parliamentary Estate. In the view of the committee, this was parliamentary activity in an unusual situation. In most cases—in the vast majority of complaints that we get concerning social media—the comments by the Peer concerned could not by any definition be said to be part of parliamentary activity.
Then we have to go on and ask whether this is freedom of speech—whether it is about having an honest and robust opinion, having the ability to offend or insult, or whatever. Unless it is covered by the definitions of harassment and it is parliamentary, the code will not engage. So I suggest that all that we have actually done is put into the code the current practice. We have not been on mission creep in this or any other part of the code—I know that a number of Peers were concerned that we might have been.
For minor cases, I do not have a definition, but the idea is that we try wherever possible to keep out of the whole process as many as possible—that is partly for purposes of the noble Lord, Lord Swire. That is something that I have also corresponded with the noble Lord, Lord Hodgson, about.
Lord Forsyth of Drumlean (Con)
On the points that the noble Baroness made about social media, can we take it that what she has told the House on record will be used by the commissioner and the committee going forward? The clarification that she has provided is fundamentally important.
Baroness Manningham-Buller (CB)
Yes. I like short answers.
On declaration of interests, at the end of the day, failure to declare a financial interest in a debate is a matter for the committee. It seems to us that the Privileges Committee and the processes of the House need to decide whether noble Lords do that at Question Time or more broadly—but we all think that “I refer to the register of interests” is a meaningless phrase, because nobody is going to look it up and it does not really help. But that is for others.
I would like to contradict the view of the noble Baroness, Lady Deech, that the committee, and all our procedures, regard bullying, sexual misconduct and harassment as more important than serious financial misconduct. There is not a competition here; there are different sorts of breaches of the code, and some of the most egregious that this House sees are financial ones. I would like to confirm that, and I hope she will accept it—it is not a competition between the two of them.
On the use of offices, of course we all deal with emails and work in our offices. To go back to my earlier point, many Members of this House have other jobs; they have other responsibilities and things that they do. What we cannot allow is for the office to become used almost exclusively for other business—to be the route of a charity being based there, for example. So there is a distinction, but I assure noble Lords that the committee is not going to be concerned about people using their offices to catch up with work in other areas.
Baroness Deech (CB)
I am grateful for that, but I am slightly worried about who is checking our offices and emails. I am of course referring not to Hancock-type activity in the offices but to the general running of one’s business, where there is a blur between private and parliamentary.
Baroness Manningham-Buller (CB)
Did I understand the noble Baroness to say that people were checking her emails?
Baroness Deech (CB)
I do not understand how one would investigate or where a complaint would come from in relation to being told that one was using one’s office for the wrong sort of activity. How would anybody know?
Baroness Manningham-Buller (CB)
Well, we have had complaints in this area before, which we have acted on, from information from people involved.
I say to the noble Lord, Lord Lilley, that the behaviour code was meant to cover everybody. I hope that I have answered the question on politics. The rules do not constantly expand; actually, they have retreated on this one. By removing non-financial aspects, we have reduced them.
I say to the noble Baroness, Lady Fox, that I have written down “fudge”, and I cannot remember why. It was her word, not mine, so perhaps the noble Baroness could remind me what the question was.
Baroness Fox of Buckley (Non-Afl)
That was specifically on social media. The noble Baroness was not clear, but she has since clarified.
Baroness Manningham-Buller (CB)
I hope the noble Baroness is content with what I have now said.
Lord Hodgson, with whom I have had a helpful correspondence, talked about the direction of travel moving towards the noble Viscount’s possibility. He also mentioned the tension between facing two ways. That is absolutely recognised, as I said in my opening speech, and we have tried to bridge that gap.
I am grateful for the support of the noble Lord, Lord Foulkes, on social media. The view of the noble Lord, Lord Balfe, that we have just dealt with a playground scrap is certainly not my view, and I also see problems with open hearings—particularly if, at the end of the day, the person concerned is found to have been innocent, as working on the presumption of innocence is very important. Equally, I also agree that where mediation can be achieved, it is infinitely preferable. However, I will not recommend to my successor, the noble and learned Lord, Lord Etherton, that he seeks to abolish himself—but again, that is a matter for the House.
The noble Lord, Lord Skidelsky, raised a point which other Peers had not mentioned about Standing Order 68. All the committee is saying is that, should the House, and should the usual channels and the Privileges Committee, decide that this was no longer tenable, complaints under the behaviour code would still need not to be debated, but complaints of, say, financial impropriety could be, if the House wanted to go down that route. But I say to the noble Lord, Lord Skidelsky, that the committee is not asking for that; the committee is just raising it as something, following the Lord Lester case, that the House might want to consider.
The noble Baroness, Lady Hoey, was concerned about appendix B—as were many of the rest of your Lordships—which has all the definitions of sexual harassment, and so on. Those definitions stand as part of the behaviour code. They are not a matter for this House to change, and the commissioner will refer to them when making investigations under those headings. I have read out the bit from the Equality Act to try to reassure her there, and I have commented on social media.
Recruitment of independent members of the committee is entirely open, and the sort of person the noble Baroness describes, who she would regard as having more common sense than an HR person, can easily apply if they wish to do so. But at this stage, I would really like to say, as the noble and learned Lord, Lord Garnier, said, that the external members of the committee offer real help and value to us in our deliberations. I think that we should be extremely grateful to them, and I regard that as important.
The noble Lord, Lord Shinkwin, makes an important point. I acknowledge that going through this process is distressing and concerning for even the most robust of us. Therefore, as regards giving support, we have specified in the new code that people can bring friends; they should be supported throughout. They could bring one Peer—not a great gang of them—or one or a few colleagues. But we recognise that where possible, we have to be compassionate, and want to be, to people who find themselves in this position, certainly until they are found against.
I hope I have answered the intervention from the noble Lord, Lord Swire, on whether we can look at ensuring that the damage done by being investigated is not made public. The commissioner goes through a preliminary assessment then has to decide whether there is enough evidence that there may be a case to answer, and at that stage, things begin to become more public.
I hope I have covered all noble Lords’ comments, but I thank your Lordships very much for the useful—
Lord Garnier (Con)
Before the noble Baroness sits down, perhaps she could confirm that the committee is very much boxed in by the rules that it is provided with? If, for example, a commissioner makes a finding both as to fact and as to sanction, and that set of findings is not appealed, the committee has no remit to reinvestigate. Therefore, it ought to be more widely understood that the committee’s ambit of power is relatively restricted in relation to that sort of case.
Baroness Manningham-Buller (CB)
I would certainly be happy to confirm that. Of course, if people appeal, and many do, the committee engages fully in the angles of that appeal and whether in fact they wish fully to endorse the commissioner’s findings. Again, it is a bit different in the Commons, but if the House wants to change that, it would need to consider it in the whole issue of process. But I thank the noble and learned Lord for that intervention.
Viscount Hailsham (Con)
My Lords, the debate has been a very full one, and the points have been articulated in respect of the amendment I have moved. I understand fully that the sense of the House is not at the moment in favour of the point that I have moved, and I do not want to trouble your Lordships any further. That being so, I beg leave to withdraw my amendment.
Lord Hamilton of Epsom
At end insert, “and instructs the Conduct Committee to recommend changes to the new Code of Conduct and associated documents to remove the entitlement of members of either House to bring complaints of harassment against members of the House of Lords.”
Lord Hamilton of Epsom (Con)
My Lords, I do not think the noble Baroness, Lady Manningham-Buller, would expect me to agree with her about the political nature of recent cases. But let us face it: they could be interpreted as political, and therefore it is very difficult to forecast that other politically motivated measures will not brought before her committee in the future. I think that even she might acknowledge that.
I can see your Lordships sitting here, thinking, “We’ve got a Conduct Committee that clears up disagreeable things—it’s never going to affect me as an individual. Let them get on with it and do the job they’ve been doing so far”. I would hesitate before I made that assumption, because there should be a note of caution.
The bar is very low to bring complaints against fellow Members, particularly in your Lordships’ House, and there are politically motivated people in this House. It is very easy to bring a complaint against somebody, because the onus is on the complainant, and the complainant’s view of whether they have been persecuted has to be taken up by the committee. When you end up in front of the Commissioner for Standards, he assumes that you are guilty, rather than innocent, because the complainant has brought the case to you. That is one of the problems that we are dealing with.
My advice to your Lordships, if this ever happens to you, is that the key thing is who you get to advise you. You have to have somebody you totally trust. I would be a little wary of hiring any old lawyer, because lawyers deal with the law of the land, and the powers of the Conduct Committee are much greater. Therefore, you want somebody who has a deep understanding of the Code of Conduct. This is one of the lessons we have learnt from people who have suffered and have had their reputation shredded by the findings of this committee in the past.
I end by paraphrasing John Donne: “Ask not for whom the bell tolls”. Your Lordships know how it ends.