Privileges and Conduct
Debate between Lord McFall of Alcluith and Lord Davies of Stamford
The Senior Deputy Speaker
Perhaps I might point out to the noble and learned Lord, Lord Mackay, that the Guide to the Code of Conduct states specifically in paragraph 143:
“A meeting will be scheduled to hear the appeal and the member will be given an opportunity to appear in person, if he or she so wishes. The Committee may also take evidence from the Commissioner”.
So that is the basis for the commissioner giving evidence. On the day, the Privileges and Conduct Committee did not hear from the commissioner but, because later appeals were put in, we ensured that the noble Lord, Lord Lester, had the last word, and he was brought in for that.
Lord Davies of Stamford (Lab)
My Lords, of course we cannot change our procedures and rules once a case has started, but if we discover that there has been a breach of natural justice it would be right for the committee not to impose any penalty, and thereafter we would need to look at those rules and make sure that we got them right.
Four important issues have arisen from the debate on which the House should focus, because all of us feel uncomfortable about the present state of uncertainty on these matters. The first point is that it is quite clear from this case—if it was not clear already—that conviction under this procedure has the effect of being totally destructive of both the personal and professional reputations of the accused. It is analogous in that respect to a conviction in a criminal case. It is therefore right that the burden of proof should be the one that is applied in a criminal case and not the one applied in a civil case, where simply losing a civil dispute is not at all the same thing. That change ought to be made as soon as possible.
The second point which has arisen from the debate—and which is a matter of concern to a great many of us—is the issue of cross-examination. It is inherent in these cases that there is rarely any forensic evidence and the whole case turns on statements that are inconsistent with each other and facts which are disputed between the various parties. In those circumstances, it is right and essential that we are entirely clear that there must be a way of dealing with these disputes and this uncertainty. In the history of law no one has found a better solution than cross-examination, and so it should be introduced. As has already been said, cross-examination does not necessarily mean that we should give up our inquisitorial approach. It would require the commissioner or somebody on her behalf—a counsel or, indeed, the committee itself—to undertake the cross-examinations required.
I do not know when the rules were changed but I remember, shortly after I entered this House, reading with great admiration the deadly cross-examination carried out by my noble and learned friend Lord Irvine of a Member of this House who had been accused of a serious offence of a different type. There is no reason why we should not have cross-examinations carried out by the committee itself in those circumstances.
There should be a way of looking through the statements—many of which may be inconsistent and not entirely credible—to get at the truth. That has not been done in a rigorous way in the present situation. I was surprised and alarmed at the casualness of the way in which the commissioner dealt with the various witnesses. Some were contacted by email, some by telephone and some were apparently uncontactable. But it is not clear why they were uncontactable or what efforts were made to contact them—and there were no transcripts of any of the conversations between the commissioner and the complainant, the commissioner and the accused or the commissioner and the various witnesses. That is a thoroughly unsatisfactory situation.
Another thing that has not been mentioned and which emerges clearly from this case is that there are obviously great dangers and risks to justice when there is a long interval between an alleged offence being committed and the complaint about it being made. That is an undesirable situation. We all know that memories fade and erode over time and that after some years people can get muddled about conversations and events that took place. It is difficult to see through that and establish what the facts were.
Furthermore, such a situation works to the disadvantage of the accused. The accused might have the ability to produce an irrefutable alibi if he or she has the opportunity to do so within a few weeks or months of the events complained about taking place, but it would be impossible in most cases to produce that alibi if there is an interval of 10 or 12 years between the two events. This works to the disadvantage of the accused in a way that is worrying.
The committee has taken note of this danger and it has tried to produce a remedy—a rather extraordinary remedy—which, if I understand it correctly, is as follows: complaints will not be entertained more than four years after the events complained about took place, except that the commissioner may, if she wishes, override that and simply accept complaints that are older than that. The sub-committee would have the right to veto that decision by the commissioner.
This procedure is wrong in many respects. First, the commissioner should not be in the position of deciding on the rules of procedure, not on the basis of objective criteria but on the basis of her feelings about a particular case—ad hoc, ad hominem and ad feminam. That is not the way in which due process works. I am concerned about that. We should have a full statute of limitations—we have a half-statute of limitations here—and it should be quite clear that complaints that are made, let us say after four years, because that is the figure that already exists, will not be entertained on any basis.
The thing that concerns me most is that, although there are no objective criteria for deciding when you can accept a complaint after the four-year deadline, the commissioner in this case set out the reasons why she felt she should override the four-year limit which normally applies and accept the complaint, as she has done. The reasons she gave are on page 19 of the document before us. The relevant part, which is of great concern, states:
“There are exceptional circumstances that justify an investigation being conducted in accordance with paragraphs 119 and 120”.
That is the paragraph which provides for the possibility of overriding the four-year limit. It continues by referring to,
“the current concern of Parliament to deal with sexual misconduct by its members … the publicity given to endemic sexual misconduct and abuse of power in many fields of work”.
The report goes on in that respect. This is of deep concern to me because the duty of the commissioner and the committee in a case like this is a single one. It is for them to do their best to establish the guilt or innocence of the accused and to set out the reasons for coming to their conclusions so that the House and the wider world can understand them. Other extraneous considerations—public policy, public opinion, current fashion and the agitations of the press—are all completely irrelevant. They should not begin to come into any of these considerations at all—and I am very worried indeed that in this case they did.
Liaison Committee
Debate between Lord McFall of Alcluith and Lord Davies of Stamford
Lord McFall of Alcluith
My answer to those comments is in line with what I mentioned yesterday to the noble Baroness, Lady Deech, in our telephone call on this issue. I said to her—I think she can reinforce this—that I take these proposals seriously and, therefore, that I will take some of these issues back to the Liaison Committee and ask, “Can we be more inclusive? Can we ensure that when we get the list, we whittle it down and engage in the 10 subjects we have chosen, as we may find there is a body of support in the House for that approach?”. There is an opportunity to do things differently, and I am happy to discuss that with the Liaison Committee.
The noble Lord, Lord Blunkett, has already made a submission to the review and I have met with him. In our discussions, the core issue was Member engagement. I want Members to know that that is one of my primary considerations as Liaison Committee chairman.
Lastly, I have been a Member of the House of Lords and the House of Commons alongside the noble Lord, Lord Forsyth, for a long time, and this is not the first time a Chief Whip has asked him to sit down.
Lord Davies of Stamford (Lab)
Does the noble Lord not agree that it is very anomalous and dubious that the Government should have a share in deciding what subjects Parliament is allowed to investigate through its Select Committee mechanism? I have the greatest personal admiration for the Chief Whip, but it is quite wrong in principle that a representative of the Government, let alone a Chief Whip, should be in that position.
Lord McFall of Alcluith
When I moved this last year, that issue was not brought up about having representatives of the usual channels, so I suggest that the noble Lord submits points to me and then we can discuss these issues. I beg to move.