Privileges and Conduct Committee

Lord Pannick Excerpts

Monday 17th December 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, I declare my interests: I have been a friend and colleague of Lord Lester for many years. I assisted him during the disciplinary process, although I was not allowed to speak on his behalf. On 15 November, I moved the amendment that the Commissioner for Standards had failed to comply with paragraph 21 of the Code of Conduct because the process was not fair or in accordance with natural justice, which the House approved by 101 votes to 78. I have not tabled an amendment today because, as the Senior Deputy Speaker mentioned, Lord Lester has resigned, but I want to make three points.

First, I think it is a matter of regret that the committee did not accept the view expressed by the House on 15 November. We had a three-hour debate and views were expressed on both sides of this difficult issue. I expected the committee to move forward with an approach that accepted the view of the House, rather than contradicting it. When we engage in parliamentary ping-pong, it is with the House of Commons, not with ourselves—not with a committee of this House. It is regrettable that the committee did not accept the view of this House.

Secondly, although the committee has satisfied itself that the procedures in this case were fair and in accordance with natural justice, I can tell the House that that is not the view of a substantial number of Members, who have expressed that view to me. From my discussions with senior lawyers and judges outside the House, I can also tell the House that that community’s overwhelming view is that, but for parliamentary privilege, this report would not withstand challenge in a court of law. That is for all or some of the reasons set out in the opinion of David Perry QC and Rosemary Davidson attached to the original report of the committee; I agree with the Senior Deputy Speaker that it is unnecessary and inappropriate to go into that today.

The courts would not find what is said in paragraph 15 of the second report from the committee very persuasive. It relies on a decision made by Lord Denning in 1952, but the standards of disciplinary justice and administrative law have moved on in the last 66 years. The courts would not find the arguments summarised by the Senior Deputy Speaker—that this is an internal disciplinary matter, where we follow the same procedures as other parliamentary assemblies—very persuasive. This is a matter where an individual’s reputation has been destroyed by reference to allegations of what is said to have occurred over 11 years ago. That requires the highest standards of fairness in the procedures. That point was made by the Joint Committee on Parliamentary Privilege, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, in 1999. I agree with what his committee said at paragraph 280 of its report, that disciplinary proceedings in Parliament, whether against Members or non-Members, should be brought into line with what were described as “contemporary standards of fairness”. It said at paragraph 281 that it was “essential” that there should be,

“safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies”.

For the avoidance of any doubt, I emphasise that I am not saying, and I have never said, that the House should believe Lord Lester rather than Ms Sanghera. I do not know who is telling the truth about this matter. I am not naive. I recognise that otherwise respectable men do very odd things in relation to sex. I have constantly argued that the only fair and effective way to determine who is telling the truth is to follow the procedures, which include cross-examination, which are accepted in courts of law and other disciplinary tribunals. I recognise of course that the process must be fair to the complainant as well as to the person accused, but there is no inconsistency in believing, as I do, both that sexual harassment and abuse of power are serious wrongs that should be properly investigated and, when proved, should be punished, and that allegations of this nature, like all other allegations of serious misconduct, must be addressed by a fair and rigorous process. That is not disrespectful to complainants or—to answer the Senior Deputy Speaker—damaging to the reputation of this House. Indeed, if anything is damaging to the reputation of this House it is not to adopt in relation to these matters procedures that withstand serious scrutiny.

The Senior Deputy Speaker also suggested that it is unfair to criticise the commissioner because she cannot answer back. With great respect, that is wrong in principle and in fact. It is wrong in principle because in any other public context a decision can be challenged in court. The commissioner cannot be immune from reasoned criticism, especially when paragraph 21 requires her to act fairly. It is wrong in fact because the commissioner did answer back. She responded to the points made by Lord Lester to the Privileges and Conduct Committee.

My third and final point is that the committee should take a hard look at our procedures for the future. Those procedures ought to implement the recommendations of the Nicholls committee in 1999, particularly those relating to cross-examination and the right to legal representation. I note that in Written Answer HL 2916 on 16 November 2017 the Senior Deputy Speaker said in relation to complaints of sexual assault and sexual harassment:

“The procedures and processes for investigating complaints made under the Code were not designed with complaints of this nature in mind and this is something … the Committee for Privileges and Conduct will need to consider”.


This case has illustrated that the noble Lord was correct in that statement. The procedures are not designed to address a complaint of this nature, and careful consideration is now required as to what amendments to introduce in the light of this unhappy episode. I say “unhappy” because it has been a painful experience of course for Ms Sanghera and for Lord Lester, but also for many noble Lords, including myself and, I am sure, the members of the committee. I have much regretted taking a different view on this issue from many noble Lords who I much respect.

--- Later in debate ---

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I was not present at the previous debate. Ironically, I was in India speaking to a gathering of senior judges about the failure of justice systems to deliver justice for women and the underlying problems, sometimes with the law but more often with attitudes, that persist in our societies to the detriment of women.

Had I been here, I would not have voted. I would have recused myself because of my friendship with Anthony Lester. I have known him since I was a young barrister. I have huge admiration for him, and my fondness for him and his family is considerable, but we do not sit in judgment in cases involving a friend or a colleague. No juror would sit in a case where a friend was in the dock; no judge would sit in such a case. That is because friendships colour our judgment. We do not want to think ill of a friend. We see their pain and feel their humiliation. We hear their side of the story and want to believe it. That is in the nature of friendship; we are partisan.

That was why we created in this House an independent commissioner. It was because we recognised that the risks of partisanship were great. We recognised that institutions often protect their own, as we had seen the scandals around the Catholic Church, the Anglican Church, the BBC, the police and different aspects of the establishment. Reflecting on all that, we created the current rules.

I ask the same question as the Senior Deputy Speaker: when the previous debate took place, who was in the House to make the case for the complainant, to speak as her friends and to speak of her character and achievements? That was why, when I read the Hansard of the debate, I was covered in gloom: it was an ill judged and misconceived debate. Although it was presented as being about process, the noble Lord, Lord Pannick, and others expressed views that implied they found such an accusation difficult to believe of their friend. That is how we all feel about our friends. The debate was presented as being about process, but it was not about justice.

All the tropes that imply that women are somehow not be to be relied on were presented to this House; for example, about delay. We have learned that delay is not a reason for not believing somebody, especially when they have experienced some transgression of a sexual kind. Things were said about writing something nice in a book about somebody who might have done something inappropriate to you, but probably every woman in this House will tell you how you get on with business after somebody has behaved inappropriately and try to normalise it so that your relationships can continue, especially if your promotion, your Bill, which you are trying to get through Parliament, or your pupillage might rely on the good will of the person who has crossed the line.

I want to remind the House of the terrible folly that has blighted this distressing business in the way that it has been discussed in the media and in this House: the confusion between criminal trial rules and disciplinary processes. This is not a criminal process—I want to emphasise that to many of the older lawyers in this House who do not seem to have kept up with the times and the disappointment that women feel about how legal processes fail them. This is a disciplinary process. Talk of proof beyond reasonable doubt, rigorous cross-examination and the need for counsel is wholly inappropriate.

Let us remember why: we are here dealing with an imbalance of power. That is the basis of the complaint. Women are complaining that their working lives and professional interactions are blighted by sexual harassment. There will be few women in this House who have not experienced it at some point in their careers. Many of us just learned to brush it off and get on with things but the young do not accept that any more; they want proper processes and they do not want it to be dealt with in the way that has been described by many of our older lawyers. Young women will not come forward to make complaints about powerful men if they are going to be subjected to Old Bailey-style quizzing in the presence of the very Lord they are complaining about.

Let us imagine that it is a young librarian in this House who has been groped by a Peer. Is she really expected to face him or his well-heeled lawyer? How do we create equality of arms when we have a Lord able to secure the professional services of a top QC and the young librarian can afford no such grandeur? Do we find some low-level lawyer and pay him or her out of the public purse when we are cutting legal aid so much to the bone that most people are having difficulty finding representation? Could we justify it? It was for all these reasons that Members of this House devised a system in keeping with most disciplinary procedures, using the inquisitorial method, not the traditional adversarial method. That means an independent assessor, arbitrator or commissioner investigating the complaint, sensitively testing its veracity, applying the same careful, probing attention to the account of the person complained of and then allowing each the opportunity to respond to the account of the other. The commissioner then reaches a conclusion on whether the complaint has probity.

I have sat in that role on a number of occasions. She has the advantage over any of us in that she has heard the live accounts of both parties. We invented this process without complaint at the time. I have no doubt that it could be improved and, as we go forward, I think it should be. Because of my own experience in these cases, sitting as the commissioner did, I suggest that it is better to sit with another assessor, as I usually do. I have always felt that I benefited from the help of others in evaluating credibility. The commissioner in this case has been subjected to wholly unjust criticism. She is a very experienced solicitor and we chose her carefully after a competitive process. She has dealt, in her 40 years’ experience, day in, day out, with the stuff of humankind, sitting as a judge in mental health matters. She is not an acquisitions and mergers lawyer, a commercial contracts lawyer, or someone dealing with fine points of law in the Supreme Court, but she has dealt, day in, day out, with the stuff of human frailty—human falls from grace and issues of dishonesty and honesty. We burdened her with the responsibility of judgment on our behalf and she deserves our respect, rather than what she was treated to.

I shall mention one area where I think she may have been wrong in law. She took the view that the allegations stood or fell together. While she may have felt handicapped by Lord Lester’s position that all the matters were fabricated, it was quite possible, for example, that there was inappropriate conduct and an unwelcome sexual pass but that the business of having a discussion about coming into this House, perhaps sitting on the Cross Benches—a discussion that many of us might have had with talented persons we thought might have contributed to this House—might have been misunderstood. The two may have become conflated, so to have felt that the allegations all stood or fell together seems to me a mistake. Evidence is not a seamless role: you can be absolutely truthful and right about one thing and mistaken about something else. The Privileges Committee, however, agreed with the commissioner’s decision and this House will have to make a decision too.

I suggest to the House that those who are friends of Lord Lester, like me, should not be voting. I will not vote. It would not be appropriate: I am conflicted between my friendship with Lord Lester and my desire to see greater justice for women. I believe that we still have not got the system for women right.

Before I finish, I want to say that I think the suspension of four years was too long, but that boat has sailed now that Lord Lester has resigned.

[Lord Pannick]

As a matter of information, it is not my intention to call a vote today.

[Baroness Kennedy of The Shaws]

That is a source of relief to many of us. It would have been very inappropriate, as it was on the last occasion.

I feel very sad about this whole business. I am sad for the complainant. I am sad that the commissioner has had a tough time. I am sad for Lord Lester, his wife and his family. I want us to make a pledge to behave better. As men and women, we are trying to remake our world. We want an equal society. We will achieve that only when there is mutual respect between men and women. We can only do that together, as men and women. This House should see that we do that as we go forward. These processes have to be good enough for the job.