Privileges and Conduct
Debate between Lord Foulkes of Cumnock and Lord Evans of Weardale
Lord Thomas of Gresford (LD)
Perhaps I may squeeze in myself after the noble Lord.
The proposed new code is a considerable advance on the existing procedures. It is an excellent proposal that a complaint of bullying, harassment or sexual misconduct should be investigated by independent investigators. The role of the commissioner should be to receive their report and, in the light of that report and any material provided by the Member concerned, to determine whether there are unresolved factual issues. If there are, she may decide formally to question the parties and their witnesses orally in separate interviews or—here I very much agree with the noble Lord, Lord Pannick—to appoint counsel to the inquiry to assist her in that task. If it is a difficult or an extremely sensitive task, it would be appropriate for her to decide to do that.
I regret that the report remains tied to the concept that the offence to be investigated is a “breach of personal honour”. If ever a phrase is redolent of mothballed ermine, that is it. Paragraph 37 explains that,
“the term ‘personal honour’ is ultimately an expression of the sense of the House as a whole as to the standards of conduct expected of individual members”.
It is,
“subject to the sense and culture of the House as a whole”,
which, the report comments, “change over time”. It is somewhat curious, therefore, that the House appoints a commissioner who is by definition independent of the House and has never had the opportunity to imbibe its culture—to breathe in the mothballs—in order to determine whether a Member is in breach of his personal honour. Further, it is equally curious that an appeal should lie to a panel which contains four lay members who are in precisely the same position. If misconduct is alleged against a Member, any charge should set it out in plain language, specifying the time, the place and the date. The findings of the commissioner should establish whether that precise charge has been proved.
I welcome the introduction of four lay members with full voting rights to join the five Peers proposed for the new conduct committee. However, when the conduct committee sits as an appeal panel to hear an appeal brought by a Member, it is my view, along with that of the noble Viscount and the noble Lord, Lord Pannick, that the lay members alone should determine it. Peers will have personal knowledge of the Member and may well be thought, rightly or wrongly, to be subject to unconscious bias one way or the other because of friendship, enmity, political views or personal dislike. In any other tribunal or court, a tribunal member, magistrate or judge would undoubtedly recuse himself or herself if he or she knew the party concerned personally.
The report itself does not suggest that it is the final word on the topic. As noble Lords have said, paragraph 21 recommends that the conduct committee should consider further the question of whether the process for investigating and determining complaints should be more or entirely independent of the House, in the light of the recommendations to be made by the Ellenbogen inquiry.
There is no consideration in the report of the process and procedure of an appeal hearing. In the Lester case I pointed out that the commissioner had herself adopted the role of respondent to the appeal, and referred to herself as such in correspondence. Although she was not called before the Conduct Committee, she provided the committee with a point-by-point refutation of Lord Lester’s case, in support of her own decision. I suggested that that was pretty unique for a person to be involved in an appeal against their own decision. It was never made clear whether she stepped in as a respondent to the appeal by invitation of the committee or on her own initiative.
Some thought should be given to the nature of these appellate proceedings, and a proper process agreed. The appeal panel should also undoubtedly have discretion to permit legal representation for the Member on the appeal, having regard to the complexity of the case, and other factors such as illness. It is positive that the report states that the grounds of appeal should include that the commissioner was plainly wrong in her finding and that significant new evidence has emerged, but it is not clear at the moment whether such grounds are permissible under existing procedures.
Finally, I welcome the decision not to debate the outcome. I thought the proceedings we held were an embarrassment. In my view, the final determination of a complaint should simply be reported to the House, not formally made a decision of the House. It should not be regarded as a proceeding in Parliament, and thereby caught by the paragraph in the Bill of Rights of 1688, which carries the heading “Freedom of Speech”:
“That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament”.
Every disciplinary process such as this in every other field of life is ultimately subject to the overriding jurisdiction of the High Court, and it would be healthy to make the disciplinary process of Parliament subject to proper judicial scrutiny.
The report is a significant advance, but it is not, as the report and the Senior Deputy Speaker recognise, the end of the story.
Lord Evans of Weardale (CB)
My Lords, I declare my interest in the register as the chairman of the Committee on Standards in Public Life. However, I speak on my own account. I very much welcome the report from the Privileges and Conduct Committee, which seems to be a significant step forward. But, as the Senior Deputy Speaker said, it is a step forward rather than the final step in the whole process. In particular, the increased independence that will be part of the construction of the conduct committee is extremely important. I share the view of the noble Lord, Lord Thomas of Gresford, that we need to continue in that direction and that a minority position for independence may not be satisfactory, particularly when difficult cases are being adjudicated, because public opinion on these issues is moving forward and we clearly need to be in step with it. The proceedings in this House before Christmas were clearly not in step with it, and I am therefore grateful that we will not be revisiting that episode, which I think was probably discreditable to us all.
On the question raised by the noble Lord, Lord Foulkes, about the bicameral nature of this, we need to recognise that this is a complex series of interlocking pieces of process. Various pieces of process are happening in your Lordships’ House, and a variety of pieces of procedure are happening in the other House. We must bear in mind that this is a totality. We cannot entirely separate what happens here from what happens there, not least because the House of Commons, the other place, is considering the question of non-recent conduct, which is likely to extend back considerably further than is currently proposed in your Lordships’ House. There is a difference there, but of course there is movement between the two Houses, so we may find that procedures in the other place impact on Members here. We need to bear in mind that those are linked issues and, I believe, in the public mind, they would be seen as part of the same issue. Therefore, we need to bear in mind how they are being played at both ends. At the moment, there is of course a considerable difference between the procedures here and those in the other place, even though there is some movement in the direction of co-ordination between the two.
Lord Foulkes of Cumnock
I agree with what the noble Lord says about working together and agreeing a bicameral core operation. However, things are different. To illustrate the public mind, I was sitting in my office in Millbank House. The phone rang, and someone from a corporate office said, “Could I speak to Lord Foulkes’s diary secretary?”. I said, “You’re speaking to him”. They think we have a whole panoply of members of staff working for us. We need to get over the point that that is not the case.
Lord Evans of Weardale
I entirely take the noble Lord’s point and would welcome having a diary secretary myself, but I do not. It is clear that we do not have identical working procedures at both ends of the Palace. Nevertheless, the principles are the same. We also need to recognise that if there are changes in the procedures in another place, we need to consider how they might impact here and vice versa. We need to make sure that there is visibility in the procedures at both ends. It is not clear to me that there has been quite as much visibility in the recent period as one might from the outside have expected.
I welcome the fact that the new conduct committee will look at and take forward the work that has been done by the Privileges and Conduct Committee so far. I think that we are still some way from reaching a perfect system; I suspect that we will never reach one because there will always be changes both in public expectations and in procedures that need to be reviewed. However, we have been provided with a helpful step in the right direction and I look forward to the new procedures being put in place.