Higher Education (Freedom of Speech) Bill

Lord Macdonald of River Glaven Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

As an historical aside, in reference to the remark by the noble and learned Lord when he drew the contrast between freedom of expression and freedom of speech, when reading Article 10 one carries away the impression that it was drafted by people whose first thought was to preserve a free press. Given the history of much of Europe in the 19th and 20th centuries—when we already had a free press by the beginning of the 19th century, the use of press censorship was the principal means of political control in many European countries—one can understand why the freedom of the press was so vital to those who drafted the European convention, whereas freedom of speech, perhaps a broader concept, encompasses more than simply freedom of the press. The idea that one would go around regulating what people said in university lectures or on street corners is probably one that even the most oppressive of Prussian policemen would not have considered reasonable in the early 19th century. Here we are nowadays with a different approach to the regulation of speech, perhaps an even more restrictive one than the Prussian policemen had, so we have to tackle this issue in a slightly different way.

[Lord Macdonald of River Glaven (CB)]

My Lords, the noble Lord may be being rather kind to the Prussian police. I have no doubt that in the early 19th century the Prussian police were extremely interested in what was said in colleges and on street corners.

[Lord Moylan (Con)]

I am happy to take the historical dispute offline, as they say, and discuss it with the noble Lord afterwards.

Our concept of freedom of speech in traditional English law is broader. It concerns not merely things that are said in the press but what you might say at Speakers’ Corner, among your friends or in colleges and universities. Amendment 10 seeks to root the notion of the legal framework in which we are considering freedom of speech in that broader English common-law tradition. I see a relatively clear contrast between the two, which is why I had no hesitation in supporting Amendment 10. I am happy to acknowledge the discussions I had with the noble and learned Lord about it before he tabled it.

It seems that the Government are not taking either of those clear choices. They have come up with a third option, which frankly I regard as a little bit of a muddle. In the first place, it seeks to root the legal framework within which we are to understand freedom of speech in Article 10, but it refers specifically to Article 10(1).

As the noble and learned Lord said, Article 10(1) is perhaps the positive part of Article 10. It is the part that goes out and says, “Freedom of expression is very important and has to be protected”. It is paragraph 2 of Article 10 that goes on:

“The exercise of these freedoms”


and so forth

“may be subject to such formalities, conditions, restrictions or penalties”

for various purposes, which it then lists. I will not detain the House by reading them out, but it is the restrictive part.

There is no mention of the second part of Article 10 in the Government’s amendment. Ministers with whom I have had the benefit of discussions about this, for which I am grateful, have said to me that it is clear they intend this to be a freedom which is consistent with what I have described as the English common-law tradition of freedom of speech. That brings me to the question: if that is what they mean but they still wish to root it in Article 10, what has happened to its paragraph 2? Does the Government’s amendment mean that paragraph 2 is disapplied in relation to the understanding of freedom of speech as it is to sit in the Bill, following their amendment? As drafted, the amendment is pregnant with paragraph 2, but we do not know whether the birth is going to take place. What is the role of that part of Article 10 in this?

My own view is that the Government have a lot of explaining to do on this late amendment to try to make clear to your Lordships what is being achieved. If this is the right means of achieving it and their intention is to have a broad understanding of freedom of speech, why are they rooting it in Article 10 in the first place and what has happened to the second part of that? Would it not be much better if my noble friends on the Front Bench simply opted for one of two amendments tabled by the noble and learned Lord, ideally Amendment 10?

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[Baroness Morris of Yardley (Lab)]

My Lords, I rise briefly to support this amendment, to which I have added my name. I will try not to repeat everything that my noble friend Lord Hunt said but will emphasise some of his points.

I too was grateful for the meeting with the Minister. It was very helpful, and I think there was a great understanding of our view and of the problems the Government are having with putting this into legislation. I completely accept that the law has to protect both those who wish to express a view and those who wish to express a contrary view. In some ways, as my noble friend said, this is a “hecklers’ amendment”, but we are old enough both to have done some heckling and to have been the subject of heckling in past years. However, most of the time I was heckling or being heckled, it was not with the intent of stopping somebody else being heard; that is the crucial point.

Universities should be places where there is freedom to put forward a view and freedom to oppose it. I would never want a law of silence, where somebody’s view has to be listened to in silence. If there is an intention to make sure that the opposite point of view, which is legally held, is not heard, that is not the purpose of universities in this country. It never has been and it never should be. There are too many examples of that border being crossed.

Professor Stock has received a lot of publicity and rightly so—she felt obliged to lose her job. However, I have worked with academics who express an interest in sex and gender, and maintain the view that sex is a biological thing and that that should govern the law, and their lives have been made a misery. It is a long time since I have been to a university and talked to academics expressing that view when they have not told stories about it being miserable to be an academic because there is not the environment in which they can openly express their views. They are not people who want to impose an alternative point of view; the idea of putting forward a view is to engage in debate, not to make others say, “Yes, you’re right. Let’s move on.” Engaging in debate is at threat.

I can see that it is difficult to put that into law. It would be impossible; we would be here all day. I hope that putting this into the code of practice gives a clear message to the leaders of our universities that they have to take action, because, quite frankly, some vice-chancellors have not been doing their job on this. They have hidden quietly for too long and not stood up to protect their academic colleagues when they should have done. If that message can go forward in the code of practice, we might begin to reverse this tide.

[Lord Macdonald of River Glaven (CB)]

My Lords, I do not oppose this amendment at all. I can see why it might be possible for material relating to this issue to be included in codes of practice. However, it is worth observing that a lot of the behaviour described by the noble Lord, Lord Hunt of Kings Heath, is patently criminal. It is a great shame that universities, colleges and other authorities do not always appreciate that.

As I said in Committee, a group of masked men letting off flares and shouting threats and abuse about a professor of philosophy inside her workplace is conduct that, in my view, is properly characterised as criminal. It is a great shame that the University of Sussex or other relevant authorities did not see it that way.

[Lord Lucas (Con)]

My Lords, I am thoroughly with the spirit of this amendment. I have a child currently at university and I know that it is about not just the speaker, but the effect this has on the students. It becomes impossible to discuss anything when you expect to be shouted down. That is far harder for a student at a university to take than it is for a visiting speaker. Universities have to get this right.

In my youth, the extreme right openly contended with Maoists in the junior common room. It was debate. They argued in debate. To shut that down now is to tell students that they are not allowed to express their own opinions. That makes a university pointless. Universities have really not stood up for the purpose of universities, in a way that I hoped they would.

Higher Education (Freedom of Speech) Bill

Lord Macdonald of River Glaven Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[Lord Mann (Non-Afl)]

I begin by saying that, although I do not know how many others here have, I have on more than one occasion been banned, or attempted to be banned, from speaking at a university. I was last issued a banning order by the University of Nottingham in 2009, I believe, which I ignored. Various people were running around with tape recorders. The argument put forward then was that I might say something offensive because I was speaking at the Jewish society.

In the 1980s I was banned, and I had to have a meeting reorganised in a local hostelry. I was banned then because—it was very simple and straightforward—I had had the audacity the year before to visit the state of Israel. I spent four days there with the Government, but I also spent four days with Fatah, the Palestinian liberation organisation on the West Bank. It seemed to me a balanced visit, and very interesting and educational. But I was banned from speaking at a university and in two other universities my publicity was withdrawn, which made it rather difficult for anyone to attend a meeting because they did not know that one was taking place.

So this is not a new problem—and nor is it a new problem in terms of debate. I recall well the speaker tour of the Paedophile Information Exchange across universities, which took place in 1978 and 1979. Many universities had such speakers; the content was not illegal but without question it was an organising campaign for that organisation, much more than an educative one. That was certainly my assessment of it. I recall in 1985 the banning of Jewish societies, on the basis that they were bound to be racist because they were full of racists and therefore should not be allowed any space in a university. I make the point simply to inform the debate—we are not talking about a modern phenomenon.

I want to pick up one particular point from these amendments: the proposal on Holocaust denial. It is true that Holocaust denial is not a criminal offence in this country, unlike in other countries, such as Germany and Austria—I think seven or eight countries across western Europe have that. To me, that does not seem a sufficient reason not to have such an egregious denial of history in this legislation. It would be a positive outcome if the Government wished to go further in terms of criminal justice. That would be done by a separate department, with separate legislation, and it may well get some support. In this context, it seems that provisions on the acceptability of entirely turning history on its head would be helpful to our universities, although the main problem we have these days is of course Holocaust distortion and minimisation. I would not suggest going further into a much greyer area, but I think this proposal ought to be considered very strongly by the Government.

[Lord Macdonald of River Glaven (CB)]

My Lords, I declare an interest as the former warden of Wadham College, Oxford, and as an honorary fellow there and at St Edmund Hall, Oxford.

I have a great deal of sympathy with the remarks made by the noble Lord, Lord Hunt, in which he identified a problem but suggested that this Bill was not the right way to confront it. As the noble Baroness, Lady Fox, rightly said, the problem is a very deep-seated cultural issue that I doubt will be dealt with significantly by this legislation, should it pass. It is my experience of running a college that has led me to feel rather queasy about some of the slightly nightmarish, as I see them, schemes and bureaucracies proposed by the Bill.

Of course, there is an issue. The case of Kathleen Stock is the most egregious example. In my view, she was disgracefully mistreated by her university and professional colleagues, not to speak of the students at the University of Sussex, some of whom seemed to be clearly breaking criminal law with the demonstrations they mounted against that highly respected academic. Young men—they seemed to be men—wearing balaclavas, holding flares and chanting threats against her seemed to me clearly to represent a breach of the criminal law, and it is a great shame that the university did not see it that way.

However, it is not just Kathleen Stock. The events in a Cambridge college over the past few days have also been deeply disturbing. The idea that a writer such as Helen Joyce, who I would regard as entirely in the mainstream, should be regarded by the most senior figures in that college as unacceptable as a speaker seems deeply depressing and redolent of a cultural problem, not just in that college.

An amendment put forward by the noble Lord, Lord Hunt, therefore attracted my interest. It is the one that relates to the question of a hecklers’ veto. The way I perceive it, the issue in universities is not so much that events are being stopped by demonstrators standing outside chanting and making a nuisance of themselves; it is the more or less cowardly response of university and college authorities who decline to host events when they fear or are warned that that sort of response will eventuate. This is a true hecklers’ veto. I have some sympathy with that amendment, although I share again the hesitation expressed by the noble Baroness, Lady Fox, that the Bill should contain a clause which is anti-free speech, if you like, rather than it being consistently pro-free speech.

I have great respect for the noble Lord, Lord Moylan, but I strongly disagree that Article 10 is somehow deficient for our needs in this area. On the country, it provides generous and comprehensive jurisprudence on the right to free speech; it is suitably qualified and well understood by our courts, public bodies and public institutions. It is certainly well understood in the University of Oxford, the university I have been most associated with. I think Article 10 is entirely fit for purpose and I strongly support the amendment from the noble and learned Lord, Lord Hope, to reference it in this legislation. It would provide consistency and legal certainty, so I hope the amendment will not in the end be controversial with the Government.

[Baroness Chakrabarti (Lab)]

My Lords, I did speak at Second Reading, so I really am not going to make a Second Reading speech; I am not going to say I am not and then do it. Although I have been clear that I think the Bill is a mistake that will lead to a great deal of time-consuming, heartbreaking and expensive litigation for our universities, which should instead be engaging in what they should be engaging in, including creating the culture that we all want, I say in some sort of spirit of bipartisanship to the noble Lords and Ministers opposite that the amendment from the noble and learned Lord, Lord Hope, is a learned and friendly gesture indeed.

All these amendments and everything that I have heard so far merely emphasise the dangerous complexity of legislating so clearly in the realm of a convention right without referring to it at all, save the statement that the Minister is required to make on the cover of the Bill about compatibility with Article 10. It is clearly the Government’s intention that this Bill, wrong-headed though I think it is, should comply with Article 10, so to try to redefine Article 10 in a slightly different way in the body of the Bill is a mistake that adds to the complexity and the danger for different regulatory bodies, be it the Equality and Human Rights Commission or the Office for Students. The noble and learned Lord has helped by making it clear that freedom of speech within the law in the United Kingdom means compliance with Article 10 of the convention. Frankly, that was pretty much the case before incorporation by way of the Human Rights Act.

I take the point from the noble Lord, Lord Moylan, that, with the resurrection of the former Justice Secretary and Deputy Prime Minister, he wants to future-proof and hopes for the scrapping of the Human Rights Act, but even the rather botched and misnamed Bill of Rights Bill purports to comply with Article 10. It is jumping the gun to try to define freedom of speech within this sector differently from the way it is defined in every other aspect of UK law and life.

I also say to the noble Lord, whose libertarian instincts on free speech I share, that, as a matter of jurisprudence and law, he is mistaken in a number of ways. It is all very well banging the drum for the common law, but there literally was no actionable right to free speech in this country until Article 10 was incorporated by the Human Rights Act. There could be under a future Bill of Rights, but there literally is not this magic thing in the common law that will protect people’s free expression without Article 10. Why? Because Parliament is sovereign and every other law that impacts on free speech will trump the free speech that I believe the noble Lord wants to see. Evidence for that lies in the issues around policing and all the other things that he has touched on in the Chamber in his time in the House. Parliamentary sovereignty will trump common law, and without Article 10 there is currently no actionable right to freedom of expression in this country.

With respect, his Amendment 28 fails to achieve what he would like. It is much more limiting a protection than the protection in the extensive jurisprudence of Article 10. For example, to say:

“‘Freedom of speech within the law’ means”


freedom of speech that

“is not prohibited by law”

is somewhat circular.

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I was genuinely shocked in the cases of Kathleen Stock and Jo Phoenix, who are more experienced academics, when their own union branches sided with the people who were calling for them to be driven out of their jobs. As somebody who spent a long time as a trade union rep in what was then NATFHE, I am shocked by that turn of events. I am pleased that the Free Speech Union exists, but this is about a recognition in the Bill that workers’ rights need to be protected across the board. If the Bill can do something to make that clear, that would give some comfort—even though I want the trade unions to start fighting for their members, as a better remedy.

[Lord Macdonald of River Glaven (CB)]

My Lords, I thought it axiomatic that references to academic staff in the Bill included all academic postholders, whether tenured or on short-term contracts. I had assumed that they were included. It would be very useful if the Minister could confirm that, because there is no doubt that academics who are working on short-term contracts are more vulnerable in this field than others. I myself had the experience of speaking to young academics—junior research fellows and so on—in that situation, who are a little nervous about expressing views which are, if I can put it this way, outside the cultural mainstream. They need particular protection in this area, so I would be grateful if the Minister could confirm that “academic staff” includes those on short-term contracts as well as those enjoying tenure.

[Lord Grabiner (CB)]

My Lords, is this not another example of why it would be helpful to have a definition provision in the Bill? If there was one, “academic staff” and “members” could be defined, and there would not be any debate about who did or did not fall into one or other of these categories.

In this context, it is worth bearing in mind another point. All universities, as institutions, will have either statutes—as in Cambridge, Oxford and some other universities, such as Durham—or their own constitution. You would glean from the constitutional documents of the institution who is a member of the academic staff and who is a member. We are a bit in the blind here, because in order to determine whether person X is a member of the academic staff or person Y a member of some institutional college, you will have to look at the constitutional documents of the organisation to find the answer. It would be quite helpful to have it in the Bill as well, so that there could not be any misunderstanding. Also, we could end up protecting through the Bill people who, strictly speaking, might not fall within the relevant definition of a particular institution. In that sense, the Bill could improve the position of individuals who are, to use a loose expression, associated sufficiently with the world of academia and who are deserving of cover here.

For example, there is a big difference in Cambridge. Once you are a student in a college, you are a member of that college for life. That may not be true in other universities—I do not know. For example, it probably was not true at the LSE; I do not remember. It is certainly true of any college in Oxford and Cambridge, so it is a bit unsatisfactory not to have a sufficiently clear definition applicable to everybody.

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[Earl Howe (Con)]

Exactly right.

I was making the point that a provider in this context is an employer and that its staff will be subject to its employment policies. Those policies must, of course, take account of the high regard that academic freedom is held in. However, depending on the circumstances, a provider may need to consider factors such as whether it is appropriate for the academic to continue to teach students; whether the academic has met accepted academic standards for their speech; and the ability of the academic to properly represent the provider in terms of its values and the reputation of the department and the provider.

The Bill recognises the nuances of the potentially difficult decisions that will need to be made under it. The “reasonably practicable” test allows for case-by-case decisions to be made, taking account of all the relevant factors.

[Lord Macdonald of River Glaven (CB)]

Does the noble Earl nevertheless recognise that this is one of the weaknesses in the Bill that is causing consternation in universities: that it appears on the face of it to provide what I might describe as malignant actors—the sort of individuals the noble Lord has just referred to—with several new avenues to cause disruption, difficulties and problems for universities, including potentially launching a specific new tort? Is it not a weakness in the Bill that universities are likely to be subject to malignant activity?

[Earl Howe (Con)]

With great respect to the noble Lord, I challenge any university to point to a provision in the Bill that changes the duties and responsibilities it has at the moment to take decisions for itself about what constitutes malignant speech, unsound science or whatever it happens to be. The Government are not trying to interfere in any way with the autonomy of universities in that sense.

Higher Education (Freedom of Speech) Bill

Lord Macdonald of River Glaven Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, since the noble Lord, Lord Whitty, is not present, it is my great pleasure to follow the noble Lord, Lord Cormack. In doing so, I refer to my entry in the register of interests as a former warden of Wadham College, Oxford and an honorary fellow there and at St Edmund Hall, Oxford.

I disagree with noble Lords who perceive no problem to be addressed, but I agree with noble Lords who have argued that the Bill addresses those problems in the wrong way. A few years ago, around 2014, when I was working in Oxford, I attended a public lecture given by the dean of the law school of a leading American Ivy League university. My role was to respond to his remarks before the topic was opened up to audience participation. He was addressing the question of free speech and to my consternation—and of course I paraphrase him somewhat—he posed the argument that free expression could most accurately be seen as a weapon of power in the hands of elites who were licensed by law to employ it to repress the disadvantaged and marginalised. In this sense, as he saw it, limits on the right to free expression could be seen as protective and in some circumstances even liberating. Language was power, and to police it could therefore be radical and affirming. In my responding remarks, I strongly disagreed with him and suggested that it was all right for him to be playing with such ideas, with all his copper-plated US first-amendment protections, but in Europe, where legal protections for free speech have always been more contingent and conditional and have had a more painful, bloody history, he was playing with fire.

It is important for us to acknowledge that, eight or so years later, those ideas that I first heard expressed in an Oxford lecture theatre have become a little more mainstream. It is more common than it should be, including in the UK, to hear free speech categorised as a threat to safety, when it is not being decried in some intellectual circles as an Enlightenment sham. It is perhaps less common than it should be to hear it described as the greatest historical progenitor of human progress.

The reasons for that shift, particularly on the left side of politics, are complex. There are some genuinely progressive elements in play: the growing understanding of the importance to society of protecting minority rights; distaste for racism, sexism and homophobia; and hostility to unfounded discrimination. It is surely an unalloyed good that terms of racist, sexist or homophobic abuse are no longer acceptable and that these forms of speech have, by broad consensus and even by law, been curtailed. However, the inroads into untrammelled speech are now going somewhat further than that, and there is a danger that we are beginning to descend into a world where feeling trumps fundamental rights, including the right to free speech. In universities, that is a hopeless direction of travel.

We should of course not overstate the position. In my old university, the University of Oxford, there is a powerful attachment to the fundamentals of free speech, driven from the top. Oxford’s official free speech statement, which I drafted along with Professor Timothy Garton Ash, is explicit that robust intellectual exchange and views that shock, even which offend, are bound to be part of the currency of discourse in higher education, that this is part of the lifeblood of the university and that it should be welcomed in the interests of truth and learning. Of course, that lifeblood is stilled if feeling —a sense of being offended—becomes the determinant of what may acceptably said. That is the risk that I assume the Bill is intended to address, and I think we should be frank and acknowledge that that risk exists.

HEPI’s survey was analysed by the think tank in this way:

“The results show clearly that students have become significantly less supportive of free expression.”


I will not run through all the statistics, but some of them are alarming: 79% of students believe that students who feel threatened should always have their demands for safety recognised; 61% say that when in doubt their university should ensure that all students are protected from discrimination rather than allowing unlimited free speech; the proportion of students who agree that if you debate an issue like sexism or racism then you make it acceptable has doubled to 35%; 86% of students support the no-platform policy of the National Union of Students while only 5% say the NUS should not limit free speech or discussion; 39% of students believe that student unions should ban all speakers who cause offence to some students; and the proportion of students who think that academics should be fired if they teach material that heavily offends some students is now 36%, up from 15% in 2016. So the direction of travel is towards a greater censoriousness and the prioritising of feelings and something called “safety” over more traditional free-speech values.

It is noticeable that no-platforming incidents, which newspapers routinely attribute to universities themselves, almost invariably result instead from decisions taken by very small numbers of students at poorly attended student union meetings. However, we have to acknowledge, as some noble Lords have, that this is the country—our country—in which a distinguished philosopher was forced from her university job for expressing, in an entirely lawful and respectful manner, gender-critical views: in other words, for exercising her free speech and her right to academic freedom. The fact that we all now probably suspect that Professor Kathleen Stock would struggle to gain future employment at another UK university without facing protests and boycotts even if she wanted to, which I understand she does not, is deeply worrying. I myself have had the experience more than once of young non-tenured academics lowering their voices when expressing to me views that they fear might not find favour with the bulk of their colleagues. That is troubling.

However, the Bill does not address these problems in the correct way, and I will swiftly indicate why. The first reason is bureaucracy. My experience of additional levels of bureaucracy is that they are not usually liberalising; quite the opposite—they tend to weigh down those to whom they are intended to administer. Will these new processes free up discourse, or will they do the opposite and encourage sclerosis?

The second is legal action. I can imagine many ways in which the process envisaged by the Government could become a tool of abuse, consuming time and resource to an uncomfortable degree.

Thirdly, the precise role and powers of the director of free speech—having listened to the speech by the noble Lord, Lord Wallace, with such pleasure, I was rather hoping he might apply for the position himself but, frankly, I do not think he would get past the vetting process—it is important that the independence of universities is protected and they do not become the plaything of quangos. Universities to the greatest extent should be self-governing institutions, and I am not attracted by the idea of a director of free speech running around issuing edicts that may or may not be workable on the ground. And how is all this to coexist with university anti-harassment policies? Harassment by speech occasionally exists and universities have to deal with it. It is not clear that Ministers have given sufficient thought to that.

My last reason is Prevent. Many of us argued when the Prevent duty was applied to universities that it created tension with existing legislation requiring universities to uphold free speech. At Oxford, we resolved this difficulty by deciding that the Prevent duty to address so-called non-violent extremism speech—in other words, the apparent requirement contained in the Prevent legislation for universities in some circumstances to block speech that was perfectly lawful, as the noble Lord, Lord Willetts, noted—was to be viewed and applied within the context of pre-existing rights, including the right to free speech. That seemed to work well. Does the Minister agree that, if the Bill is passed, the Prevent duty as it applies to universities will be subject to the free-speech strictures contained in the Bill?

Afghanistan

Lord Macdonald of River Glaven Excerpts

Wednesday 18th August 2021 Lords Chamber

[Lord Macdonald of River Glaven (CB) [V]]

My Lords, I briefly echo some words spoken in the opening stages of this debate by the noble and learned Lord, Lord Judge. Among the bravest of those involved in the creation of some semblance of just law in Afghanistan in recent years were its women judges. Admired by jurists around the world, despised and feared by the Taliban, hated by those members of the Taliban whom they convicted and sentenced, these extraordinary figures now face the greatest and most imminent peril. This is precisely because they conducted their work in open court before the public gaze, as any decent, self-respecting judge would. In question now is not so much their self-respect but ours. What will our country, a safe harbour and international advocate of judicial independence, do to help those who are perhaps its most courageous contemporary practitioners?

I can do no better than to quote the president of the International Association of Women Judges:

“The IAWJ urges governments to include the Afghan women judges and their families, who are in such a desperate and precarious position, in the special measures extended to interpreters, journalists and other personnel … By serving as judges and helping develop the Afghan judicial branch, women judges have helped establish the rule of law in their country … Allowing them to be at the mercy of the Taliban and insurgent groups, given what they have sacrificed, would be tragic indeed.”


I add only that it would, perhaps, be not so much tragic as shameful.

Our country has some claim to be the birthplace of the rule of law, and we certainly proselytise for the rule of law around the world. So, like the noble and learned Lord, Lord Goldsmith, I urge the Minister to confirm in his reply that the brave women judges of Afghanistan will be among those groups offered succour and refuge by the United Kingdom.

Privileges and Conduct Committee

Lord Macdonald of River Glaven Excerpts

Monday 17th December 2018 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords—

[Lord Macdonald of River Glaven (Non-Afl)]

My Lords—

[Lord Taylor of Holbeach]

My Lords, we should hear from the Cross Benches. I remind noble Lords that it is not customary to address the House for 20 minutes in an ordinary, non-time-limited debate. I believe shorter speeches would be welcomed by the House.

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[Lord Falconer of Thoroton]

My Lords, I make three short points. First, I adopt in full the speech made by the noble and learned Lord, Lord Mackay of Clashfern, in the first debate. He pointed out that we all promised to abide by this procedure, that the complainant in this case made a complaint in accordance with that procedure, nobody doubted that the procedure was followed and then, at the very end of the process, this House said, “Sorry, although your complaint has been justified by the terms of this procedure, we are changing the rules now”. It was not an attractive sight to watch. I agree with the noble and learned Lord, Lord Mackay of Clashfern.

Secondly, the wrongness of the view that we have to have the orotund procedure described by the noble Viscount, Lord Hailsham, is obvious to practically anyone who has experience of disciplinary complaints. I include in the names of people to whom it is obvious the noble and learned Lords, Lord Brown of Eaton-under-Heywood, Lord Hope of Craighead, Lord Irvine of Lairg and Lord Mackay of Clashfern—the people who are on our Committee for Privileges. The idea that there is some legal bar to having a process whereby we have an inquisitor who asks the questions of both sides, putting both sides of the case, is absolutely ridiculous. Do not judge that as lawyers: judge it as ordinary people.

My third point—and the thing that makes me most angry—is the hypocrisy of some noble Lords in citing Dame Laura Cox in support of their position. What Dame Laura Cox said was that members of staff in the House of Commons would never believe that they would get a fair hearing if Members of Parliament were involved in making the ultimate decision. What happened when this case came along is that someone who was in chambers with the person we were considering, someone who had been a friend of his for years and somebody who went on holiday with him for years all spoke on his behalf. Nobody spoke on the complainant’s behalf at all. The House then voted in favour of remitting it back to the committee. We should not regard the debate on 15 November as anything other than a sign of extreme hypocrisy.

The particular hypocrisy that I focus on is the fact that the reason it was remitted was because we focused on process and all of Lord Lester’s friends then voted to remit it, despite the fact that that was the most obvious breach of process. I urge the House, by what we say today, to give the fullest possible support to the noble Lord, Lord McFall, in what he has asked us to do.

[Lord Macdonald of River Glaven]

I wish to address the House for a few minutes only on a subject to which many noble Lords have alluded, which is cross-examination. I cannot claim the 50 years of the noble Viscount, Lord Hailsham, but I can claim 40 years at the Bar. During that time, I guess that I have spent hundreds of hours in adversarial proceedings cross-examining witnesses myself or watching co-defending counsel or opposing counsel cross-examining. That has been the greater part of my professional life.

Many noble Lords in this debate and in the debate last month have reminded the House of the famous dictum that cross-examination is the greatest legal engine for the discovery of truth ever invented. Of course it can be, and I have seen it so. I have seen liars unmasked, fraudsters exposed and terrorists cross-examined into confinement for decades. But my years of experience have also taught me that, like most aphorisms, this one is not able to paint the whole picture. Cross-examination can, of course, uncover the truth, but it can also obfuscate. It can advance a false prospectus, and it can intimidate. In adversarial proceedings, especially where freedom and forced confinement are in issue, its essential combativeness is indulged, but always and only under the watchful eye of a trained, professional judge.

I am sure that cross-examination can be one way to get at the truth, but I have never believed that it is the only way. In particular, I have never doubted that a diligent and fair inquiry by a competent tribunal, taking the necessary evidence, examining the relevant issues and asking the proper questions, is also capable of uncovering the truth. Tribunals proceed in this way every day, in this country and in other fair-trial jurisdictions around the world. The questions asked by a tribunal are, of course, a form of cross-examination in themselves, but cross-examination conducted in a more neutral, more objective manner, perhaps better suited to the inquisitorial style.

It is clear to me from the papers in Lord Lester’s case, which I have read, that the commissioner asked the complainant about all of the primary matters that might have been put in cross-examination: “Why did you go back to Lord Lester’s house?”, “Why did you dedicate the book to him in the way that you did?”, and so on. And the commissioner got her answers. It is true that these questions were asked in a gentler, more neutral way than might have been expected from a robust cross-examining lawyer, but there is no harm in that. Indeed, there are many situations in which this sort of low-key approach is more likely to get at what really happened, precisely because it occurs in a gentler, less aggressive environment. In my judgment, a disciplinary hearing, particularly where sensitive allegations of sexual misconduct are being aired, is certainly one of those situations.

Your Lordships could have mandated an adversarial disciplinary regime. I would not have recommended it, but you could have done so. This House could have mandated an inquisitorial system in which the participants were lawyered up, including for the purposes of cross-examination. Again, I would not have recommended this, but it could have been recommended. Even though both these things could have been done, they are emphatically not a pre-condition for a fair process. On the contrary, in my judgment, the process that your Lordships alighted upon was, for all the reasons that other noble Lords and the committee have set out, reasonable and fair.

Let me address one final thing on this subject, the standing of the commissioner. Lucy Scott-Moncrieff is a figure of the highest reputation in the legal world, a solicitor with a distinguished practice, a past president of the Law Society and a founding member of the Queen’s Counsel appointments panel. This House could hardly have selected someone more suited to the difficult task in hand, or more deserving of our trust. Your Lordships devolved to her the power to inquire fairly and thoroughly into the circumstances of Lord Lester’s case and to come to her reasonable conclusion on the evidence. That was her warrant. In my judgment, she discharged it faithfully.

Before I sit down, I wish to say one other thing briefly. During my five years as a public servant, as a prosecutor, my colleagues and I struggled endlessly against the sort of insidious stereotyping that bedevilled sex crime prosecutions. “Why didn’t she report it sooner? Why didn’t she distance herself more? Why was she wearing this? Why was she drinking that?”. In the end, we believed that we were making some progress, as judges repeatedly warned juries about the dangers of making stereotypical assumptions about the way that traumatised people react to the source of their trauma, warning them that they should not allow what may be little more than prejudice to cloud their judgment of the fact that an injustice has been done. Let us not find ourselves, in this House, moving backwards.

[Baroness Jones of Moulsecoomb]

My Lords, I was at the debate last month. I do not know if any of your noble Lordships have seen “Groundhog Day”, but this has similarities. We are going over the same ground again. I should like to make two points. First, I support the Committee for Privileges and Conduct. Its robust response to the November’s debate was superb. I was furious during the debate; I walked out at one point, because I was so angry with a Peer who was speaking. The report is fantastic and obviously I will vote for it if anyone decides to divide the House.

Secondly, I never thought these words would pass my lips, but the noble Lord, Lord Pannick, is wrong. He was wrong to press the amendment last time and he would be wrong to push it today. He talks about fairness all the time. Was it fair to divide the House when there was no expectation of a vote and many Peers had gone home because the debate went on for much longer than expected and they had trains to catch? As I see it, fairness is not playing a full part in this process.

My last point is a question for the Senior Deputy Speaker. Lord Lester has resigned rather than been suspended. Does that mean that he maintains his rights and privileges of access here in this House, such as eating here and so on? I am sure that many of us will feel that natural justice would suggest that he should not.