Conduct Committee
Debate between Baroness Manningham-Buller and Lord Forsyth of Drumlean
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.
House of Lords Conduct Committee: Code of Conduct Review
Debate between Baroness Manningham-Buller and Lord Forsyth of Drumlean
Lord Forsyth of Drumlean (Con)
I thank the noble Baroness, Lady Manningham-Buller, for giving us this opportunity and for the brilliant way in which she has carried out the chairmanship of this committee, which I hope will go on for many more years. It is a pleasure to follow the noble Baroness, Lady Donaghy, who is very wise—and I think that we are all grateful for the work that she has done. However, the world has changed a bit, and we need to reflect that.
The noble Baroness, Lady Manningham-Buller, said at the beginning that the code was too long and too detailed, and I could not agree more. It is not just that it takes a long time to read it. Incidentally, the copies that have been provided in the Printed Paper Office do not include the appendices that were in the original document, including appendix B on page 56, paragraphs 19 and 20 of which were frankly just offensive. I hope that the fact that they are not included means that they are going to disappear for the foreseeable future.
There are trivial complaints made that should really be dealt with by the usual channels and not by the commissioner, and an abuse of the complaints system for political purposes is now happening, often through social media. The reputational damage done to an individual who may be subject to a vexatious complaint when the complaint is made public is enormous. The noble Baroness, Lady Donaghy, urged us not to talk about individual cases, but I am going to talk about one. We can see what has happened to the noble Lord, Lord Alli. Someone apparently made a complaint that he had not declared a particular interest. I do not know whether that is right or wrong, but it has resulted in pages and pages and day after day of coverage about him, and he is in a position where he is not allowed to comment on this or defend himself, which to my mind is neither fair nor right. One sees people doing this again and again. I do not make this accusation about any one party; we all have people in political parties who think that this is an appropriate way to behave, but I do not.
The other issue that worries me, which is again to do with Members’ vulnerability, is that if the commissioner is investigating a particular complaint Members are not allowed to have any legal representation.
Baroness Manningham-Buller (CB)
I said I was not going to interrupt. Anybody can have legal representation. That is not improper. What they cannot do is ask their lawyer to answer the questions for them. In fact, most people who are subject to serious allegations seek legal advice immediately and have it beside them at all stages.
Lord Forsyth of Drumlean (Con)
I am aware of that; it is actually spelled out in the document on the basis that this is seen not as a legalistic procedure but as a more informal one. However, if your entire reputation is on the line, you should be able to have the basic standards of natural justice. In the case of a criminal prosecution, for example, no one would argue that your lawyer should not be able to make representations on your behalf. It is the business of confidentiality not being able to share that with colleagues; that is probably observed more often in the breach but, if you have been wrongly accused of something, it is all over the newspapers and you are not allowed to talk to any of your colleagues to get advice and help, that is a very unpleasant position to be left in. There is also the issue that it takes for ever for the matter to be decided. By the time it is, if you have been found to have been traduced, nobody is interested. You might get a single line in a newspaper. I worry about the process.
I am conscious of the strictures of the noble Baroness, Lady Donaghy, not to mention particular cases, but I also worry about a recent case where the commissioner decided on a particular sanction and then asked the complainant what they thought of the sanction. The commissioner then changed the sanction to make it more severe as a result of talking to the complainant. To me, that feels a little dodgy, to put it mildly. It is true that, in the legal system, we take evidence from people who have been subjected to a crime about its impact on them, but we do not allow them to decide what the sentence should be.
Picking up the comment made by the noble Baroness, Lady Donaghy, I agree that the House of Lords is different from the House of Commons. We should be. However, we are a part-time House while the Commons is a full-time House. Look at the sanctions that are applied in the other place: if people who have committed quite serious breaches of the code there and done some pretty stupid things are suspended for more than a set number of days, they can find themselves subject to a recall petition. The sanctions over exclusion therefore tend to be small numbers of days. However, colleagues in this House have been excluded for months—six months, in one case. The difference is that, in the House of Commons, if you are excluded for less than the recall period, you continue to be paid and to receive all your allowances, while Members of this House are unable to gain any of their allowances and go unpaid. Therefore, an extended period of exclusion is a far more severe penalty than would apply to Members of the House of Commons. Although I accept that we should be different, I do not really see why we should have such broadly different tariffs for breaches of the codes.
The other issue where I hope we will be different is where people have been accused of some criminal offence. It is essential that any decision to exclude them should be made only after they have been charged, not on arrest, for the obvious reason of maintaining the principle of innocent until proven guilty. I know that a different view has been taken in the other place but I very much agree with the noble Baroness, Lady Donaghy, that we should decide our own rules on these matters—although that does create a slight anomaly.
I am also worried about what I would describe as the committee’s mission creep; the chairman touched on that. It is highly inappropriate that Peers’ conduct not related to their parliamentary activities or role should be within the scope of the commissioner. I do not think that it is for him or her to look at that. I also cannot for the life of me understand why, under the code, you have to inform the Clerk of the House if you are subject to an investigation by a professional body. What has that got to do with the Clerk of the House? A doctor subject to a complaint to the GMC would have to tell the Clerk of the House about that. Why is that appropriate? Why should a company chairman, perhaps found to be in breach of health and safety legislation and subject to an investigation by the HSE, have to tell the Clerk of the House? What business is that of the House of Lords?
It is just wrong. We have a number of Peers in high-profile public and private roles. Where does it end? Does it apply to a head teacher who is accused of breaching employment law, or to a landlord/tenant dispute? I felt that the noble Baroness, Lady Donaghy, got quite close to touching on this: there seems to be a suspicion growing that anything that damages the reputation of a Peer damages the reputation of the House. That cannot be right, and it is dangerous.
There was a recent example in the debate the other day about VAT on school fees. A colleague on the Government Benches made an accusation about what had happened in a particular school. Someone then said that it was not true and made a complaint to the commissioner and, as a result, got a whole load of coverage about this person having misled the House. The newspapers put it rather more strongly than that. It is none of the business of the commissioner to look at what is said in the Chamber. Lots of things are said in the Chamber that are a matter for debate. If people think that someone has misled the House in some way, there are lots of processes by which that can be corrected or debated. I worry about the idea of mission creep and the perception of the role of the commissioner. They will say, “We’ve had a complaint that so-and-so didn’t tell the House the truth”, which then becomes a story. That is a real-life example. This is not a partisan point; in both cases I am defending people who are members of the government party. I was going to say opposition party, but that is me now.
I am sure that the independent members of the Conduct Committee do a great job, but I worry about the balance between external members and people who have detailed knowledge of parliamentary procedure and an understanding of the political process. I wonder if the balance is too far in one direction. An example of that is the requirement to declare your interests. It is absolutely impossible to declare your interests at Question Time without irritating the House. Therefore, people stand up and say, “I refer to my interests in the register”, which is frankly a waste of time. We do not have the register and we do not know what the interests are. If you are watching from the outside, you think, “Ah, he or she must be in someone’s pay”. It is a fatuous requirement. We end up in a situation where people are breaching the code, as is explained in the document.
I also want to re-emphasise the difference between paid advocacy, which is speaking in the House or to Ministers specifically about a business interest—it is quite rightly forbidden—and speaking on the generality of policy, which may impact negatively on a company from which they receive payment. While I was chairing a bank, I never asked any questions about issues which affected the bank because I felt vulnerable to being accused of paid advocacy, even though I know that the rules would have provided for the general position. It is undoubtedly the case that people are afraid of speaking on certain areas because this is not widely understood. Because it is not widely understood, mischievous journalists can make hay from it.
In short, I really welcome what the chairman of the committee said, because the committee needs to rewrite the code and to undertake a review of the approach which is taken, so that it takes account of the impact of social media and the increasing exposure of Members to unjustified reputational damage from malign political influences.