Privileges and Conduct

Debate between Baroness Falkner of Margravine and Lord Thomas of Gresford

Thursday 15th November 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I agree wholeheartedly with the noble Lord, Lord Pannick, that the statement in the Code of Conduct requiring the commissioner to act in accordance with the principles of natural justice and fairness transcends any statement in the guidance to the code that limits the cross-examination of witnesses. In an appropriate case, the evidence requires to be tested—and I can think of no more appropriate case than this, where the international reputation of the noble Lord, Lord Lester, is threatened by an allegation more than 12 years old of harassment, which is a criminal offence. The consequences for him are immense.

There is a further aspect of these proceedings which concerns me. The code does not lay down any detailed process for the investigation of complaints. The proceedings are inquisitorial, which means that the commissioner acts as both investigator and judge. Ironically, the working party, which published its Independent Complaints and Grievance Scheme Delivery Report last July, recommends that the roles be separated: there should be an investigator to investigate and report and a decision-making body to receive the report and determine the complaint.

Without an explicit process to follow in this case, the commissioner made up her own. Her lack of forensic experience—although she is a very distinguished lawyer in other respects—and her lack of confidence are demonstrated by the need, as she saw it, to consult a friendly judge for guidance. She collected the evidence, interviewed such witnesses as she chose in informal interviews, some of them merely on the telephone, and ignored other witnesses suggested to her by the noble Lord, Lord Lester. She then came to a judgment on the facts and upheld the complaint. Her findings of fact under the code could not be reopened before the sub-committee on conduct, nor on the appeal before the full committee. The challenge on appeal of the noble Lord, Lord Lester, had to be as to the fairness of her investigation and the process by which she came to her conclusion. It was not and could not be a rehearing of the facts.

The commissioner made mistakes. For example, her approach to the evidence was in my view to reverse the burden of proof and to apply a standard of proof which did not reflect the severity of the consequences of her findings. I remind the House that the guidance at paragraph 128 states that in order to find against a Member,

“the Commissioner will require at least”—

at least—

“that the allegation is proved on the balance of probabilities”.

That means that in appropriate cases, the standard of proof should be higher than a mere 51 to 49. There are other flaws of forensic analysis which I will not trouble your Lordships with.

The most extraordinary aspect of these proceedings, however, was that the commissioner made herself a party to the appeal process. Between pages 94 and 111 of the report, there is set out the commissioner’s point-by-point refutation of the grounds of appeal of the noble Lord, Lord Lester. This is the first time that I have ever come across a judge making herself the respondent to an appeal against her own judgment.

So what submissions did she make to the appellate committee? First, she said that the noble Lord, Lord Lester, did not accept the legitimacy of her investigation. This is not surprising, since we are about to scrap it anyway when the report of the working party is received and put into effect. Secondly, she said that, as the noble Lord, Lord McFall, pointed out, the noble Lord had spoken in support of the procedures in 2009, when the question of the conduct of the four Peers who had been convicted by criminal processes was dealt with. The commissioner criticised the status of counsel’s opinion—Mr Perry’s opinion. She questioned the independence of his opinion of leading counsel, on the basis that he was instructed by the solicitors of the noble Lord, Lord Lester. In paragraph 30, she said that its status was,

“only an opinion, not an accepted decision made in an adversarial court”.

There is an irony in that, is there not?

Paragraph 31 states:

“In a standard appeal the appellant (Lord Lester) and the respondent (me) would both put up legal arguments (opinions) as to why the appeal should, or should not be allowed. I do not have that option, as the processes set out in the Code do not permit this. However, what I can say is that, if I had that opportunity, I have no doubt that I would be able to obtain a reputable, eminent opinion that disagreed in many, if not all, respects from that of Mr Perry and Ms Davidson”.


That is her view: she described herself as the respondent to the appeal. Nothing in the code suggests that the commissioner is entitled to such a role.

She then criticised the attempt by the noble Lord, Lord Lester, to introduce fresh evidence and submitted in paragraph 34:

“The Committee will be aware that it is not its role to reopen the investigation, but simply to ‘use their judgment to decide whether, on the balance of probabilities, they endorse the conclusions of the Commissioner’”.


She added:

“I do not believe the Committee should admit”,


this fresh evidence,

“or use it to re-open the investigation”.

These are submissions made by the judge, the finder of fact whose facts could not be challenged—and there she was, defending the process.

She continued to assert that the noble Lord, Lord Lester, was responsible for any inaccuracies in his grounds of appeal and alleges that he was guilty of unsatisfactory conduct during her investigations. In paragraphs 53 to 103 she sets out point by point her challenge to his grounds of appeal and her defence of her own conduct of the investigation. She—the judge against whom the appeal is being made—concludes in Paragraph 104:

“For the reasons set out in this paper and in the appendix to this paper I am confident in my findings and in the processes I applied throughout my investigation. I ask the Committee to dismiss Lord Lester’s appeal against my findings”.


I very much doubt that as a part-time judge in a mental health tribunal the commissioner has ever appeared in the Upper Tribunal to argue against an appellant appealing her own judgment and inviting the Upper Tribunal to dismiss the appeal.

So how did this travesty happen? Was she invited by the clerk or the chairman of the Committee for Privileges and Conduct to make these representations? Or did she jump into the arena of her own accord? Did the noble Lord, Lord Lester, consent to this? Was he asked whether she should make herself a respondent to the appeal?

The proceedings before the Committee for Privileges and Conduct were remarkable. Any Member who is brought before it on a charge of not acting on his or her personal honour should bear in mind that, however ancient the allegation, however old you are—the noble Lord, Lord Lester, is 82—however much you may have been touched by dementia like Lord Janner, whatever stress or illness you may be suffering—and the noble Lord, Lord Lester, was defending the potential ruin of a lifetime’s reputation—you, every one of you, will be on your own. You cannot have anyone speak for you, much less present your case—and the noble Lord, Lord Pannick, was there ready to do it.

[Baroness Falkner of Margravine (LD)]

While my noble friend is setting out a very cogent case as a lawyer, does he accept that the commissioner was appointed by this House and that he and the noble Lord, Lord Pannick, need to accept that the procedures are the procedures that were adopted by this House and that, whether they are fit for purpose or not, they are the procedures that we have today? They are the procedures that will affect all of us as we sit here in this House. It is our honour and our integrity, and my noble friend impugning the integrity of someone this House has appointed does not help the case of his and my noble friend Lord Lester.

[Lord Thomas of Gresford]

They may be here today, but they will be scrapped next week when the report of the committee is received. This is the only time that these procedures have been used in a sexual harassment case. That is why the commissioner was left on her own to invent the procedures.

My noble friend Lord Lester was entitled reasonably to expect that he could present his grounds of appeal to the committee without them being undermined beforehand by the submissions of the commissioner. Her submissions were before the committee in written form, but she was never required to present them in person to have them examined, questioned and tested. By contrast, as the report shows, my noble friend Lord Lester was given 30 minutes to make his oral submissions and, contrary to the traditions of the Judicial Committee of this House, of happy memory, he was heard in silence without the engagement, questioning, teasing out of points or discussion of any of the matters raised by the commissioner by way of refutation. He was not questioned at all.

Lest the commissioner or anyone else, including my noble friend, should suspect that I am acting as a mouthpiece of my noble friend Lord Lester, let me make it clear that although on many occasions I have worked with him in this House and many times deferred to his views in the field of human and women’s rights, our paths have not crossed socially or professionally. I have had no discussion with him at any stage or with anyone else, including the noble Lord, Lord Pannick, about these allegations and was unaware of the progress of these proceedings until I read the report on Monday evening. The analysis of the report that I have set out is entirely mine, and I do not pretend to speak for my party in any way.

After 22 years in this House, I am distressed at the distance that I consider the House has fallen from fairness and natural justice. I am also shocked that, after all the attempts to protect the identity of the complainant and redact the report, she herself, on the day that this report was published, should have given an exclusive interview to the Times together with personal photographs. If anything goes to credibility, that does. It makes a mockery of our procedures, and I can only hope that a charity has fully benefited from her.

Crime and Courts Bill [HL]

Debate between Baroness Falkner of Margravine and Lord Thomas of Gresford

Wednesday 27th June 2012 Lords Chamber

[Baroness Falkner of Margravine]

I say to the noble and learned Baroness that if that non-transparent process that she describes, which sounds like the old game of clubbing together to fix it all up, is indeed accurate, there should be no reason for the amendment. In that case, if it is all so chummy, why not have the Lord Chancellor sit on the panel?

The power to veto seems to contradict Section 3(6)(a) of the Constitutional Reform Act 2005, which places a statutory duty on the Lord Chancellor to defend the independence of the judiciary. Not for the first time, one part of an Act—the duty to defend the independence of the judiciary—sits uneasily with the process as defined. Moreover, the process requires the Lord Chancellor to put his reasons in writing. I have already commented on that. It would be far better in increasing transparency and enhancing accountability for the Lord Chancellor to be a member of the selection commission —listening, participating and evaluating the candidate being questioned, without a veto over the appointment—than, after the fact, disagreeing with the selection commission.

In conclusion, I touch on the point made that either a very powerful Lord Chancellor would sit on the commission panel and influence it to go in the direction that he wanted; or, if the Government got their way, that the Lord Chancellor, having sat on the selection panel, could not persuade the panel of his views on an individual candidate and would be deeply dissatisfied because he did not carry the selection panel with him.

I argue that his potential for dissatisfaction would be greater if he had not exercised the veto and was therefore stuck with someone he found it difficult to work with. In fact, it could be said that he would take greater responsibility for working with a candidate with whom he did not entirely agree if he were on the selection panel and had been overruled. He would have been part of the decision-making, he would have been there and heard the argument why the majority of the commission wanted to go in a certain direction and would therefore have to suck it and see. On that basis, I have a lot of sympathy with the Government on the amendment.

[Lord Thomas of Gresford]

My Lords, going back some 25 years, I remember being warned in 1987: “You realise, don’t you, that Mrs Thatcher has never appointed anybody as a High Court judge who has been overtly political?”. I was about to stand for the 1987 election. I stood; I lost for the eighth time; but that did not dissuade me. My point is that then, how the system worked was completely opaque. You did not know what recommendations were being made. You did not know when you had scored a black mark. I recall a close colleague once seeing his file in the Lord Chancellor’s Department, which said in terms that he had fought and lost eight elections as a Liberal candidate—he was so close a colleague that he had been mixed up with me. I am sure that that held him back for a long time from obtaining the appointment that he ultimately did.

I was slightly shocked to hear that we still have a non-transparent system whereby the Lord Chancellor is consulted and becomes involved in the appointment of judges, although there is nothing formal about it. I did not know that. It is opaque. The Bill makes it absolutely transparent that the Lord Chancellor will play a part, and I think it is very good that he should. He should listen to other people who are high in the profession and to what a lay person thinks of a particular appointment. His view may change. I do not think that the Lord Chancellor would necessarily dominate such a selection committee, certainly not if he has a political angle. There may be a toing and froing of views within that committee but we will know that it is happening because he is on it. Consequently it will be a far more satisfactory system than what we have heard is happening now: the Lord Chancellor, without it being in any statute, is involved in some way. That is wrong and I think that the Bill is preferable.