Privileges and Conduct
Debate between Baroness Butler-Sloss and Lord Woolf
Lord Woolf (CB)
My Lords, I should begin by referring to my interests in the register and stating that I took part in the debates relating to Lord Lester, to which I shall refer in a moment. In that regard, I am pleased to be able to say that I consider Lord Lester a personal friend.
Today we have taken a new look, rightly, at a subject of considerable importance: how this House proposes to tackle conduct that has apparently become more prevalent recently than it was in the past; namely, instances of individuals in a position of power taking advantage of that power to bully, harass and commit sexual misconduct involving individuals in a less powerful position.
It is important that the House should act in accordance with the rule of law and is an example to other institutions—here, I pay recognition to the improvements recommended in the report which we are considering. Undoubtedly, those who had that responsibility have given careful attention to the problems and put forward what they regard as the best proposals that at this stage it is possible to make. Those proposals are certainly to be welcomed as an improvement.
I say that remembering that Lord Lester was successful in the first debate in relation to his conduct but that in the second the position was reversed. That perhaps illustrates the difficulties involved. I am not in the least surprised that those who have spoken before me have made comments which could be regarded as being critical of what is in the report but at the same time have felt it possible to welcome what is now proposed.
After the second debate, I was left with the uncomfortable feeling that Lord Lester did not receive the fair treatment to which he was entitled. In saying this, I have no insight as to his guilt or otherwise. However, irrespective of his position, he remained entitled to a procedure which was fair. Although cross-examination was not an essential requirement in the circumstances in which he was involved, the fact remains, as others have said, that without cross-examination it is very difficult and sometimes impossible to ascertain where the truth lies when two people give different accounts which are wholly unsupported in either case. I was therefore delighted that the House decided to hold an inquiry conducted by an eminent QC into the procedures which should apply in this type of case.
I was also pleased that the House thought it proper to conclude a process of consultation, although I was surprised that it was restricted to four topics, as noble Lords will see from the top of page six of the report. However, the report also makes it clear that if comments were made outside those four headings, they would be taken into account; indeed, they were. I hope that when Miss Ellenbogen’s report is made available in the summer, as expected, the House responds to it appropriately.
I turn now to the proposals contained in the committee’s report. Like other noble Lords, I wish to identify the ones I regard as particularly important, such as those amending the Code of Conduct and the guide to the code. I emphasise that paragraph 6 of the introduction to the report states that the proposed changes will include,
“a new set of processes for investigating complaints”,
of the type with which we are concerned; namely,
“bullying, harassment or sexual misconduct”.
Paragraph 29 on page 10 states:
“We recognise the clear need to implement specific and appropriate processes for reporting and investigating complaints”,
of the type with which we are concerned. These processes are intended to,
“work fairly and effectively for both members and complainants and provide appropriate support for both … and to draw on the growing evidence base on best practice for addressing such behaviour”.
The proposal I regard as of the greatest importance is that, where appropriate, the commissioner should be supported by a team of independent investigators appointed by Parliament, and that the commissioner may delegate any of her investigatory functions to them. The significance of this proposal—I believe I share the view of the noble Lord, Lord Thomas, here—is that it will produce a situation similar to that regularly adopted in public inquiries to appoint a counsel to the inquiry. A single commissioner acting alone may find it almost impossible to find the truth in this sort of case. The report does not indicate who the independent investigators will be, nor the qualifications they will have. However, I am prepared to rely on the fact that the commissioner is responsible for conducting a full investigation on behalf of the House, and that the House will ensure both that those who are appointed are fully qualified to do so and that the truth of the complaint can be assessed quickly. If I am right in making this assumption, my greatest reservation about the procedure in its unamended form is largely met because, for example, legal advisers can assist in conducting cross-examination if they wish to do so. I cannot see anyone objecting to questioning in that form.
Baroness Butler-Sloss (CB)
I wonder whether the noble and learned Lord understands that none of the investigators will be lawyers.
Lord Woolf
I am grateful to the noble and learned Baroness for drawing that to my attention but it is not stated in the report.
Lord Woolf
Perhaps the Senior Deputy Speaker can confirm that. If that is the case, I suggest that it is a mistake; I hope that the investigators will be experienced. They may not have the particular qualifications of a barrister, but they may be familiar with legal proceedings and able to play a prominent part in the informal domestic forum I hope will exist in respect of these complaints. Even if they are not lawyers and they do not have previous experience, in time they would develop it by doing the very job that a lawyer often does. The important thing is that the commissioner should have skilled assistance because she is not meant to do everything herself. She should be able to delegate, as is proposed in the report.
The other matter I will refer to is the powers of appeal. As has been said, they are similar to those on judicial review. Those who have experience of judicial review will know, as I do very well, that it can be an excellent form of appeal, especially in respect of tribunals of the sort which are involved in investigating these complaints. The powers on judicial review are attuned to the purpose of ensuring that the role of justice is properly protected and it is of significance that reference to judicial review is made on the final page of the report. It is right that that should be so.
For the reasons I have indicated, I hope that this will mark a real improvement. I am sure that what existed before this report should not be allowed to continue any longer if that can be avoided.
Public Bodies Bill [HL]
Debate between Baroness Butler-Sloss and Lord Woolf
Lord Woolf
My Lords, as always the noble Lord, Lord Lester, has made a good point. But the fact of the matter is this: is the procedure set out in this Bill the appropriate way of dealing with the minor amendments to which he has referred? He has taken as an example the body which, ironically, was designed to achieve the independence of the judiciary from the Executive by ensuring that the way in which judges are appointed is separated from the Executive. What the Bill will do is say that if we want to amend or abolish that body, we will go through a two-stage process. First, we will move it to another schedule, and possibly discuss that in this House. We will then go through another process to achieve the desired amendment. If it is wrong in principle, as I submit it is, to treat a body of this sort by placing it in Schedule 7, then the fact that one day some minor amendment might need to be made to that body does not justify the treatment being proposed. The Judicial Appointments Commission justifies proper consideration because even minor amendments can affect such a body in ways that caused this House to look so carefully, in the Constitutional Reform Act 2005, at how in the future we would appoint our judges.
Baroness Butler-Sloss
My Lords, I hope the Committee will forgive me for not being present throughout the debate on this first amendment but I have been at a Select Committee.
I rise for two reasons: first, respectfully to agree with everything that the noble and learned Lord, Lord Woolf, has said; and, secondly, to point out four particular examples in Schedule 7 which are subject to the power to add to other schedules. I cannot see how the examples I am going to give could be added to other schedules. First, where would the Royal Botanic Gardens go to? Secondly, the Children and Family Court Advisory and Support Service had a very unhappy gestation but has now become relatively effective; to interfere with it would be a disaster for children in this country. I know something about the third example, the Family Procedure Rule Committee, because I used to be its chairman. Where do you put that? My last example is the Gangmasters Licensing Authority. The Committee will remember the Chinese cockle pickers and why we established the Gangmasters Licensing Authority. How on earth can it be added to another schedule?