Privileges and Conduct

Debate between Lord Warner and Lord Hope of Craighead

Thursday 15th November 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I wonder if it would be of assistance to the House if I were to speak next. I should explain that one of my duties as Convenor of the Cross-Bench Peers is to sit upon the Committee for Privileges and Conduct. That is a responsibility that I bear on behalf of my colleagues on the Cross Benches, and I had the important duty of sitting on this particular committee. I shall explain succinctly why I felt unable to accept the contention of the noble Lord, Lord Lester, that the commissioner was at fault in the way that she carried out her investigation. I have of course listened with great care to what my noble friend Lord Pannick has said in presenting the amendment.

I shall concentrate on two matters: what the commissioner did and what she was required to do. The first thing that she did, as required by paragraph 119 of the guide, was to seek and obtain the agreement of the sub-committee, chaired by my noble and learned friend Lord Brown of Eaton-under-Heywood, to investigate. That is because the alleged incidents occurred more than four years before the complaint was made. She obtained that consent from the sub-committee and proceeded to receive the details of the complaint and then meet the noble Lord, Lord Lester, to provide him with the details that were contained in it.

The noble Lord then began a process of challenging the process being adopted by the commissioner. First, he asked for an alternative procedure by way of a dialogue to be adopted so that he and the complainant could meet together with the commissioner to discuss the incidents that she was complaining about. The commissioner was uncertain as to what she should do about that, so she went back to the sub-committee to find out what its advice was. In the meantime, the noble Lord, Lord Lester, had complained to the sub- committee about the fairness of the procedure. The important point to note is that the commissioner was told by the sub-committee that she was bound to investigate the complaint under the procedure laid down by the code and the guide to conduct. I emphasise that point because I think it should be realised that if there is any basic fault in the procedure, which is my noble friend’s essential point, the sub-committee shares the responsibility for the way in which the case proceeded, as does the sub-committee that looked at the matter afterwards.

The instruction from the sub-committee was to follow the procedure laid down by the code and the guide. The Senior Deputy Speaker very helpfully set out a good deal of what is contained therein and I do not want to go over it, but there is a crucial passage at paragraph 124 that has to be understood and that has been in the guide for many years. It says:

“Proceedings are not adversarial, but inquisitorial in character”.


That is a crucial passage in the guide, which is followed through in the following paragraphs that talk about no entitlement to cross-examination. The point is that an adversarial process is one where cross-examination is indeed resorted to and, as I think my noble friend was suggesting, one might well have counsel to assist in putting those questions. That is the nature of the adversarial process that all of us who have sat as judges, and indeed who have appeared in courts as lawyers, are familiar with, but this was an inquisitorial process where the conduct of the inquiry was in the hands of the commissioner, appointed, as has been pointed out, by the House to conduct this process as an independent and impartial investigator.

One has to understand that because, when one comes to the phrase, which has also been quoted, that the commissioner,

“shall act in accordance with the principles of natural justice and fairness”,

one has to understand what that phrase means. The principles of natural justice have been established in our common law for many years. There are two of them, assuming of course that the investigator is impartial. Principle number one is that the person complained against shall have fair notice of the case being made against him. Principle number two is that the person complained against shall have a fair opportunity to answer to the complaint. Those are the principles of natural justice that are universal and which are referred to in that paragraph in the guide. Cross-examination is the essence of an adversarial process, and one must assume that when the House approved the guide in this form it understood very well that this was the nature of the process that it wished to adopt. One might say that the important point was to keep the adversarial element—counsel and all the rest of it—out of it and put it in the hands of the commissioner so that she could conduct the inquiry as best she could.

If one follows through what the commissioner actually did—I do this not to reopen her inquiry, which we are not allowed to do, but to test the coherence of what she did—one sees that she interviewed the noble Lord, Lord Lester, to discuss aspects of his statement. She said she gave him the opportunity to tell her anything else that he thought was relevant, applying the principle of natural justice. Significantly, his response was to deny the allegations in every particular. As she said, his case was not that it was a misunderstanding or a misinterpretation, so either the complainant or the noble Lord was not telling the truth, and she had to decide that issue.

As we know from the report, she then contacted witnesses, and she used her discretion as to how best to do that. She provided the noble Lord, Lord Lester, with copies of the statements by these witnesses. She then considered no fewer than 12 challenges that the noble Lord made to the progress of the investigation so far. Here your Lordships see the second principle, the opportunity to reply, being applied. She then showed him her draft report. He made 10 more representations, each of which she considered and dealt with before the report was finalised. So if one works through the report, one finds that she conducted the process in accordance with fairness and the principles of natural justice.

She noted that there were discrepancies between the complainant’s statement and those of the witnesses but, as she pointed out, that was not altogether surprising in view of the lapse of time. Indeed, on the contrary, if they had been exactly fitting with each other, that might suggest collusion, which, in her judgment, was absent in this case. She accepted that the witnesses were telling the truth as best they could.

She said she did not need to examine each of the allegations in great detail, the reason being that the complaint was not said to arise from a misunderstanding or misinterpretation and she was not provided by the noble Lord, Lord Lester, with material to conduct a penetrating investigation of the kind where one might put to the complainant alternative explanations for what might have happened. I think she was saying to us in the report that it was not for her to construct the noble Lord’s excuse if he did not provide that excuse to her himself.

I have two final points. She said that when she was dealing, as so often with these very difficult cases of sexual misdemeanours, with competing positions of the two people involved, on the whole she might have regarded this as a 50/50 case where the balance was not tipped against the noble Lord, Lord Lester. That was why she had regard to the witnesses to see if she could test, by some independent evidence, whether there was a cogent reason for preferring the complainant’s account of what had occurred. All that is perfectly orthodox, coherent and understandable.

The last and most important point is one that every judge who sits in an appeal has to appreciate and I suggest to your Lordships that we should grasp it too: the commissioner had the great advantage of seeing, interviewing and assessing the complainant herself. We do not have that advantage. The commissioner’s advantage is one that she alone had, and it was her assessment of credibility that was crucial to the determination of this case.

There has been a lot of criticism of the commissioner’s conduct. I respectfully suggest that she conducted the process to the best of her ability and in accordance with the rules provided for her by the House, which the House looked at in 2010, for example, and has not sought leave to change. I do not think the process could be said to have been at fault if tested by the principles of natural justice and fairness, and I respectfully submit to your Lordships that the amendment should not be agreed to.

[Lord Warner (CB)]

My Lords, as a non-lawyer, I support the amendment of my noble friend Lord Pannick and agree with everything he said. In doing so, I recognise that I am raising serious doubts about the fairness of our procedures in cases such as this involving sexual abuse and harassment. I also recognise that my actions could be interpreted by people outside the House as special pleading for one of our own. This latter point is in no way my intention, and I claim in no way whatever that the noble Lord, Lord Lester, is innocent. I simply do not know. I am not a personal friend of the noble Lord, although I have known him for more than 20 years, and I do not know him socially.

My only concern is the same as that of my noble friend Lord Pannick: that we are operating a flawed system that can unfairly totally damage a distinguished person’s life and reputation. As I said, I am not a lawyer, but I have been involved in a case where I was cross-examined in a tribunal when I sacked a black manager for sexually abusing a child in care. I accepted that cross-examination because I had taken a serious action that would damage that individual and their livelihood. I was cross-examined for more than an hour about my actions and the evidence I had for taking those actions. So I have had the experience of being cross-examined and having my judgments tested in, in effect, a court.

At the heart of my concern is whether our procedures are fit for purpose to deal with allegations of historic sexual abuse or harassment. That is the issue. These are notoriously difficult issues to address fairly, as other jurisdictions have found. I accept that we do not wish to prevent complainants—very often women —coming forward, often after a long period after inappropriate conduct has occurred. Equally, we now have enough experience of false claims to know that evidence must be properly tested before people’s reputations—usually men’s—are trashed unfairly. This balance can be difficult to achieve to everyone’s satisfaction, particularly given the historical discrimination against women.

In this case, my reservations about accepting this report as it stands turn on whether the noble Lord, Lord Lester, was given an adequate opportunity to legally and forensically test the credibility of the complainant’s evidence before adjudication was made. I do not think, on the evidence available to me in the report, that he has. That therefore could lead to a possible unfair adjudication that destroys his reputation.

Given the serious consequences of the report for the noble Lord, Lord Lester, I feel extremely uncomfortable about simply nodding it through because it conforms with flawed guidance that we have given the commissioner. I can also foresee that if we do not examine our procedures more carefully now, we could mishandle many further cases that come forward. You would have to be a great optimist to think that there will never be further cases. For those reasons, if my noble friend Lord Pannick wishes to test the opinion of the House, I will support him.

Care Bill [HL]

Debate between Lord Warner and Lord Hope of Craighead

Wednesday 16th October 2013 Lords Chamber

[Lord Warner]

My Lords, just to clarify matters, if this lady had been covered by the Human Rights Act, the son would have been able to take legal action to try to prevent the home removing her. The mischief that was being committed was the forcible removal of a woman in her 90s from the place that she had lived in for a very long time. What the Human Rights Act—as I understand it; I am not a lawyer—would have provided protection for was the ability of a relative to seek protection from the courts that this home, in taking that action, was actually in breach of the Human Rights Act. I do not think that the noble Lord’s suggested remedies would have helped in this case or any other like it.

While I am on my feet, I say to the noble Lord that this Act changes the position anyway, because that lady, or a similar person in the future, might well have come up against the cap on her privately funded care and her care would then be paid for by the state, which would be performing a public function—or a function of a public nature—in paying for her care in that private provision. This Act changes the dimension from the past as well.

[Lord Hope of Craighead]

My Lords, I do not know whether I am permitted to speak again since we are on Report but perhaps I might just say for clarification that in my opinion the analysis by the noble Lord, Lord Warner, of the reach of the Human Rights Act is entirely accurate. We have had a number of cases, in both the House of Lords Appellate Committee and the Supreme Court, dealing with the kind of problem where people say that they are losing their home because of steps being taken to remove them from premises that they occupy. It is that reach and the uncertainty that has been drawn attention to, where some people have the protection and some do not, that causes real problems.