Privileges and Conduct

Debate between Lord McNally and Lord Tugendhat

Thursday 15th November 2018 Lords Chamber

[Lord McNally (LD)]

My Lords, I asked to speak because I was leader of the Liberal Democrats for nine years from 2004 to 2013 and this case happened on my watch. I understand the difficult task of getting the balance right in the system. There is a worrying development, as the noble and learned Lord, Lord Woolf, has rightly said. We have to get the right decision in terms of fairness and natural justice. Simply getting behind the commissioner because we have appointed her or because this committee, or that committee, or the Senior Deputy Speaker has put his name to it, misses the point.

The report has been put before the House for debate and, I hope, for the Senior Deputy Speaker to listen to what has been said. If we just follow the book, if we just make it that the rules are the rules, we are in grave danger of a great miscarriage of justice. I have two hopes: first, that the Front Bench, which I see is getting very restless, realises that this goes to the very heart of what this House is about and that those who want to speak in this debate should be heard, because it is very important; and, secondly, that in listening to the debate, the Senior Deputy Speaker will realise that some very valid points have been made and need to be addressed.

Benjamin Franklin said:

“It takes many good deeds to build a good reputation, and only one bad one to lose it”.


We know how easily a reputation can be destroyed and how difficult historical cases are. We have only just come through the passage of suffering that had to be faced by Lord Guthrie and the family of Lord Brittan before their historic cases were dealt with. In destroying a reputation we have to be very careful that the accused has protections as well. Certainly in the case of the noble Lord, Lord Lester—Anthony—the report makes it very clear what is at stake in paragraph 11:

“for decades past the respondent has been one of the most widely known, effective and admired of those campaigning for racial and sexual equality in this country, a renowned supporter of human rights and freedoms across the board”.

What has been on trial is that reputation, which is not something that should be destroyed by a flawed process on the balance of probabilities.

I said in opening that I had been leader of the Lib Dems; I have also known the noble Lord, Lord Lester for over 40 years. Given that one of the “public interest” reasons given in paragraph 42 by the commissioner for initiating her inquiry was:

“Those who behave in the way alleged sometimes do so repeatedly”,


let me put it on record that, until the matter came to light, I had never heard any such accusation being made against the noble Lord. It is interesting that we have not seen any evidence that the complaint was part of a “pattern of behaviour” that the commissioner was seeking.

I have acknowledged the difficulty of getting the balance right between complainant and accused. This is doubly difficult in dealing with historic cases, and even more so when what was in operation was not a tried and tested process but one created ad hoc because the code, as it existed, did not cover sexual harassment. I was in fact on the committee—with the noble and right reverend Lord, whom I still refer to as the Bishop—when we put together that code. What happened, as we know, was instigated by a journalist who was known to the complainant and who set up the ground rules for what became the complaint by questions in a letter set out in paragraph 34. They raised no specific case but produced the reply set out in paragraph 35. The ad hoc nature of those ground rules is conceded in the final sentence of paragraph 35:

“It would be open to the House in the future to amend the Code of Conduct to require members to abide by an anti-harassment policy”.


So this is a work in progress. Nobody has ever been tried for sexual harassment under that code. We are in grave danger of finding, through this debate and rigorous examination by this House, the flaws in the code, but of leaving the noble Lord, Lord Lester, stranded on the sandbank of rectitude because we have to back the commissioner and the recommendations before us. That is not what this House is about. That is not why this report is on the Order Paper—it is so that this House can give it rigorous examination and, if it has failings, for those in charge to have the courage to say that they will take it back and look at whether those grounds are sustainable.

I am not a lawyer so I will not go into the matter of the cross-examination, although I think that, for those who have not gone through all the report, the constant use of the term “witnesses” is misleading. There were no witnesses to this event, other than the complainant and the noble Lord. The nearest that there was to a witness was Lady Lester. We must not bandy about that the complainant had six witnesses in her support; she had six people who heard her account of what had happened. The case is about the relations, the things between them after the event, but I notice even today that in her book Shame Travels, published in 2011, her publishers quote the noble Lord, Lord Lester, making a complimentary comment about the book. It seems strange, but never mind.

It was also in the report that somehow the complainant was overawed by the power of the House of Lords. But as the noble Lord points out in paragraph 121—and as we now know because she published her name herself—the lady in question was in her forties and a “confident and determined campaigner”. She is more than that: she is a very successful woman who, at the time we are discussing, was in her mid-forties and had been rightly recognised, both nationally and internationally, for her courage in standing up for women, including powerful and life-threatening prejudices within her own community. Likewise, the idea of her being promised a peerage in exchange for sexual favours is I think given far too much credibility in the report. Surely the noble Lord, Lord Lester, is right in paragraph 56 when he says:

“I have no power to make such offers or threats in respect of peerages”.


Yet it is the accusation of “peerage for sex” that seems to have tipped the balance towards bringing the case within the remit of the code of conduct—and of course given it extra media appeal.

In many ways, the noble Lord, Lord Lester, lost his reputation at the outset of the investigation, when reports appeared in the Times and, a little later, the Sun—the two papers to which the complainant also revealed her identity immediately after the report was published. Yet the commissioner can only say about the initial flagrant breach of confidentiality:

“I have no evidence as to the source of the press reports”.


I notice that the Senior Deputy Speaker did not even refer to what I think was the most serious breach of confidentiality during the process, which was that leak to the press.

When we get to the issue of exceptional circumstances, which caused the commissioner to waive the four-year rule to let in a complaint over 10 years old, the first two reasons given in paragraph 41 have nothing to do with the merits of the case. They refer to,

“the current concern of Parliament to deal with sexual misconduct by its members”,

and,

“the publicity given to endemic sexual misconduct and abuse of power in many fields of work, which encouraged the complainant to come forward”.

We must not be intimidated by the present atmosphere about sexual harassment to make the wrong decision in this case just because of that current climate.

Finally, I come to the draconian sentence of four years for a man of 82, which was changed from complete expulsion only because of a technicality. I in no way belittle the seriousness of the complaint, but the noble Lord, Lord Warner, is quite right: this will not be the last case of sexual harassment that we get, and given that my noble friend Lord Lester was accused of an indecent proposition, I wonder what the committee will recommend for more serious cases of sexual harassment. By deciding on expulsion, it seems to have gone for bust in the very first case.

If the noble Lord, Lord Pannick, decides to divide the House, I will be in the Lobby with him. But I sincerely hope that what was said and will be said in this debate is that the House should be doing its proper duty in this process. That proper duty is not to rubber stamp, tick a box, or to give votes of confidence to this or that chairman, but to get the right decision about the person we are dealing with at this time.

This case did not merit breaking the four-year rule, with all the dangers of historic cases. The process is flawed—the committee has conceded that it is looking for a major review. But most of all, a lifetime’s reputation should not be destroyed on a “balance of probabilities”. For those cogent reasons, we have got this wrong and we should have the courage to say so.

[Lord Tugendhat (Con)]

I have known the noble Lord, Lord Lester, for 60 years and declare at the outset that I should be very surprised if he were guilty of the offences alleged, but that is immaterial; I cannot know what happened, neither can any of us know what happened. My concern is entirely with the process by which the conclusion in this report has been reached. We have had a number of weighty and wise speeches, so I can be very brief.

I was worried as the debate began that the speeches of some contributors seemed more about whether we should support the process or whether we should be more concerned about whether the noble Lord, Lord Lester, had received a fair crack of the whip, as the noble and learned Lord, Lord Woolf, put it. Our priority must be to ensure that these allegations are properly investigated and tested and that both the complainant and the noble Lord, Lord Lester, are subjected to the most intense examination so that a view can be formed.

Whether or not our processes are fit for purpose is another matter. On the basis of the debate so far, I have come to the conclusion that, in matters of this kind, our processes are not fit for purpose. They may well be fit for purpose in allegations regarding expenses and things of that sort, but this is a very different sort of situation. We should have the courage to recognise that a process that is satisfactory in one set of circumstances is not satisfactory in this set of circumstances. I hope very much that, either as a result of the noble Lord, Lord Pannick, dividing the House, or as a result of the Senior Deputy Speaker withdrawing his Motion, it will be possible for a second look to be taken.

So far as the case against the noble Lord, Lord Lester, is concerned, it really does seem to me incredible—and I am not a lawyer—that such a serious matter can be concluded on the basis of a balance of probabilities and, as is said in paragraph 18, of the commissioner considering that,

“she was more likely than not to have been telling the truth”.

“More likely than not” and “balance of probabilities” seem wholly inadequate in a situation of this sort. We should, as far as possible, get beyond all reasonable doubt.

I also refer to the speech of the noble Lord, Lord Warner, who talked about his experience of cross-examination, and I should like to do the same. I remember vividly an occasion when I appeared before a Board of Trade inquiry—it was investigating not me but someone else—and gave evidence on oath. I was absolutely convinced that what I was saying was right; all the events had occurred many years before but I was convinced that my memory was serving me correctly. I remembered where the individuals had sat at the board meeting in question and what people had said. Under cross-examination, however, it was borne in upon me that, although almost all my recollections were correct, I had the date of the meeting wrong. I had no interest in giving false evidence. I was trying to help the inquiry. I got almost everything I remembered right, but I got the date wrong, and the date was a very material point. That is why it is simply not good enough for the commissioner to say:

“I considered that she was more likely than not to have been telling the truth”.


I am sure that the witness, or whatever the appropriate word is, was telling the truth, but that does not mean that she was right. That can be determined only as a result of cross-examination.

I will not delay the House any longer. The noble and learned Lord, Lord Woolf, said almost everything that could possibly have been said, in the most convincing fashion, and the noble Lord, Lord McNally, made a very powerful speech. I was certainly impressed by what the noble Lord, Lord Pannick, had to say. In this case, justice is not being done. That is not a judgment on whether the noble Lord, Lord Lester, is guilty or not, or on whether he or the complainant is telling the truth. My judgment is based on the fact that the noble Lord, Lord Lester, has not been given a fair crack of the whip. We owe it to the honour of this House and the honour of the noble Lord, Lord Lester, to ensure that he is given one.

Finally, in recent years a number of institutions, when dealing with questions of sexual harassment and other matters, have put the interests of the institution and its rules ahead of justice towards the individuals. There is a great danger that we are going to become too bound up in our own rules and too little concerned with the fate of the man at the centre of the allegations.