Privileges and Conduct

Debate between Lord Foulkes of Cumnock and Lord Thomas of Gresford

Tuesday 30th April 2019 Lords Chamber

[Lord Foulkes of Cumnock]

No, no—I would like to be able to employ them, not to do that. These Cross-Benchers are on the ball; they pick things up quickly.

I was a Member of the House of Commons for 26 years. We got a special allowance to employ staff in our constituency and in the House of Commons. There are arrangements for employing and paying staff and structures to enable MPs to do that. That is not the case in the House of Lords. So what is meant by, “House of Lords Members’ staff”? A number of Members of the House of Lords have people working for them, but they are paid for by outside bodies, whether it be a film company, an organisation to which they give professional advice or, indeed, their law firm: they are not employed by the House of Lords. Can the Senior Deputy Speaker indicate whether these staff are covered if they are employed by someone else? It is not clear in any way from this whether staff who come in to help Members of the House of Lords but are employed by some other organisation are covered. Some people employ interns. Are interns covered by this? Are they considered to be House of Lords Members’ staff? It needs to be clarified. What about volunteers? I have an excellent volunteer who comes regularly to help me. Is he to be considered under “House of Lords Members’ staff”? Is he covered by this? None of this has been dealt with.

The desire to extrapolate from what happens in the House of Commons to what happens down here has been too strong, and a number of anomalies have arisen. I have raised one of them that needs to be clarified and I hope that there will be answers to these questions—if not now from the Senior Deputy Speaker, certainly before we get the final report from the commissioner, Naomi Ellenbogen. I hope that, before we approve anything finally, these kinds of anomalies and questions will be answered—and I am grateful to the lawyers for allowing me to squeeze in between them.

[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.

European Union (Withdrawal) Bill

Debate between Lord Foulkes of Cumnock and Lord Thomas of Gresford

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Foulkes of Cumnock]

That is a matter of opinion. More and more research is being done, including recently by an organisation whose exact name I am trying to remember which carried out some work, about which I had an email this morning, showing that people who voted leave did so for a whole variety of reasons, unconnected in some cases to the whole question of the EU. That is one of the problems of referenda generally, as we have discussed before. Still, as we discussed earlier, if the decision was made by the British people, there is a very strong argument that it needs to be undone by the British people. We need to look at that again as the arguments become even stronger.

To return to the amendment, I hope we will get some specific promises and details from the Minister. As I said when I started, he has been known for his credibility, sincerity and honesty. I hope we will see that again today.

[Lord Thomas of Gresford]

My Lords, I have a specific question for the Minister: do the Government accept the proposition, put forward so clearly by the noble Lord, Lord Wigley, in introducing the amendment, that they are bound by the promises made by the leave campaign? They say, “It is the voice of the people that we are following”. The Government had a number of choices that they could have made, but in fact they have chosen to follow a model that must bring great delight to the most extreme Brexiteers. If they do that, they are bound by those promises, I submit—I accept what the noble Lord, Lord Wigley, said.

It is suggested—this is the weak and feeble argument put forward by the leave people these days—that it did not make any difference, and that what they said really had no impact whatever. Before the people spoke and before we heard the voice of the people, the people listened. And what did they listen to? They listened to a universal lie about the National Health Service, that it would receive £350 million a week. The noble Lord, Lord Liddle, has referred to this as “lying”, but I prefer the word “cheating”, which has been used elsewhere in this building this week. The campaign, we now learn, was prepared to send out contradictory messages to targeted people. We do not know what those messages were and we do not know who the people targeted were, but that was cheating. So when the people spoke, they had listened to the lying and cheating propaganda that had been put forward.

Let me be more specific about Wales, where specific promises were made. Wales has been the net recipient of £650 million a year from European funds. That is not something to be proud of; it is because Europe recognised the needs of Wales, and gave money in structural funds and agricultural support that addressed those needs. I will not enumerate precisely what they are, because my noble friend Lady Humphreys has already covered that ground quite fully.

There is a moral imperative about this Government: if they are going to campaign for the sort of Brexit that the most extreme Brexiteers want, they should fulfil those promises, and make it clear in the report that the amendment calls for. In Wales it was said by leave campaigners, in terms, “You will not lose a penny”; that was said widely, across Wales, in all the campaigning that took place.

European Union (Withdrawal) Bill

Debate between Lord Foulkes of Cumnock and Lord Thomas of Gresford

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I cannot allow the noble Lord, Lord Foulkes, to continue with his heresy that the Government are right in what they are doing. I noticed the shock that passed over the face of the noble Lord, Lord Forsyth. What I think the noble Lord, Lord Foulkes, does not appreciate is that the proposal of the Government is to introduce frame- works into this country to save the internal market of the UK, whether or not the devolved Administrations consent. All they are prepared to do, as the noble Baroness the Minister said in response to something earlier, is to consult—they are not necessarily seeking agreement. That is where he has it wrong.

[Lord Foulkes of Cumnock]

No, I have it absolutely right. I know that that is precisely what it is. I have said that on previous occasions. But, with respect, it was the couple of speeches that the noble Lord, Lord Thomas, made earlier on that moved me in the Government’s direction.