Privileges and Conduct
Debate between Lord Pannick and Baroness Jones of Moulsecoomb
Lord Pannick (CB)
My Lords, I thank the Deputy Speaker for the way in which he has introduced this difficult matter. I declare my interests. I have been a close friend of the noble Lord, Lord Lester, and we were colleagues at the Bar for almost 40 years. I assisted him during the process before the Commissioner for Standards and indeed at the hearing before the Committee for Privileges, but I was not allowed, because of the procedures of this House, to speak on his behalf either before the commissioner or before the committee.
I do not know—your Lordships cannot know either—whether the noble Lord, Lord Lester, committed the acts alleged against him. I would be very surprised if he did but I do not know. However, I know that the procedure applied by the Commissioner for Standards was manifestly unfair. If you are going to assess the credibility of competing contentions as to what occurred nearly 12 years ago, apply a very serious sanction against someone and destroy their hitherto unblemished reputation, you have to allow them, through their counsel, to cross-examine the person making the allegations, which turn on credibility. At the very least, the commissioner should appoint independent counsel to perform that cross-examination; that would also be acceptable.
Paragraph 21 of our code of conduct is very clear. I am sorry that the Senior Deputy Speaker did not mention it. It states that the commissioner,
“shall act in accordance with the principles of natural justice and fairness”.
The fact of the matter is that in every other regulatory, disciplinary or employment context in this country, if you are accused of serious misconduct where the issue turns on credibility and you face a serious sanction, you are entitled to your legal right to cross-examine the person making the allegations against you so that their credibility—and yours, because you must be cross-examined as well—can be properly assessed and determined. I find it quite astonishing that this House, which lays down the law for everybody, does not comply with these basic standards of fairness. With great respect to the Senior Deputy Speaker, the question is not about whether the commissioner is distinguished—she is—or whether she carried out this function very carefully; no doubt she did her best. It is essentially a question of principle. Can she fairly determine an issue that turns on credibility when she did not allow for any possibility of cross-examination?
The Senior Deputy Speaker relied on the guide to our code of conduct, paragraph 127 of which states, as he accurately pointed out:
“Nor do members accused of misconduct have any entitlement to cross-examine complainants”.
Of course they have no such entitlement, because fairness does not require cross-examination in all cases. In many cases, credibility is not an issue, but that paragraph cannot mean that the commissioner lacks any power or duty to allow for cross-examination if and when fairness so requires. If that paragraph so provided, it would conflict with the governing position in paragraph 21 of our code of conduct, which requires the commissioner to act in accordance with “natural justice and fairness”. In any event, even if our code were followed by the commissioner—which was not the case—the question before the House is whether the noble Lord, Lord Lester, was treated fairly and in accordance with natural justice by being denied the opportunity for cross-examination. It is very important to emphasise to the House that this is not a lawyer’s point. It is inherent in the very concept of fairness.
It is also important to emphasise to the House that the noble Lord, Lord Lester, wanted the right to cross-examine not because of some abstract principle but because of what he sees as the gaps and inconsistencies in the case against him—as to when the harassment is said to have occurred, what meetings Ms Sanghera says she was denied access to and, most fundamentally of all, between her allegations and her own conduct. Your Lordships may have seen in the report that, one week after the alleged events, she signed her book for the noble Lord, Lord Lester, in affectionate terms. I quote:
“Anthony … Thank you so much for your love and support. It has been my pleasure to meet you … Love and admiration.”
One week after the alleged events, she expressed “admiration”. Two and a half years later, she sent him another book thanking him for his support and signing it—
Baroness Jones of Moulsecoomb (GP)
I feel that the noble Lord is asking us to judge again this case, which is not appropriate for us, because our legal knowledge is not sufficient.
Lord Pannick
I emphasise to the noble Baroness and noble Lords that I am most definitely not asking the House to take sides as to who is telling the truth and who is not. I am citing these matters as briefly as I can because, in the circumstances of this case, fairness cried out for cross-examination. I am giving an example of why, in the absence of cross-examination, fairness could not be achieved. I was telling the House that, two and a half years after the alleged events, Ms Sanghera sent the noble Lord, Lord Lester, another book thanking him for his support and signing it, with “love and respect”.
A great authority on evidence, Dean Wigmore, said—and he was right—that cross-examination is,
“the greatest … engine ever invented for the discovery of truth”.
I remind your Lordships that in 1999 the report of the Joint Committee on Parliamentary Privilege, which was chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, stated at paragraph 281 that when the House deals with serious cases of contempt it is,
“essential that committees of both Houses should follow procedures providing safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies”.
The Joint Committee set out what it described as a series of “minimum requirements of fairness” for a Member accused of wrongdoing. Those minimum requirements included,
“the opportunity to examine other witnesses”.
Mention has been made by the Senior Deputy Speaker of the comments made by the noble Lord, Lord Lester, himself in the case of Lord Taylor of Blackburn, who was disciplined for dishonest expenses claims, but what is fair depends on the context. The context in the present case is an allegation of misconduct nearly 12 years ago dependent on the competing credibility of two people. In any event, what the noble Lord, Lord Lester, said in 2009 cannot be determinative of the standards of fairness.
The noble Lord, Lord Lester, put before the Committee for Privileges an independent opinion from David Perry QC, who had advised Parliament in relation to its code of practice. He said that, given the serious nature of the allegations and the time that had elapsed since the events in question, the noble Lord, Lord Lester, had been denied a basic requirement of fairness in the circumstances of this case. He also made many other criticisms which I will not deal with.
Sexual harassment and abuse of power are serious wrongs and nothing that I say is intended to diminish their gravity, but those who are accused of such offences are entitled to have their cases fairly and properly considered. The more serious the allegation and the more severe the penalty, the greater the obligation on us to act fairly. The noble Lord is facing suspension for nearly four years and his reputation has been destroyed.