Viscount Hailsham
Main Page: Viscount Hailsham (Conservative - Life peer)(1 day, 16 hours ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate
Viscount Hailsham
Leave out “agreed to” and insert “referred back to the Committee with an instruction that, in place of paragraph 38, the Committee bring forward proposals giving effect to the following: that the facts and the recommended sanction should be determined by an independent tribunal; that the member should at all times be entitled to legal or other representation; and that the representative should be entitled to cross-examine witnesses and make submissions.”
Viscount Hailsham (Con)
My Lords, in speaking to the amendment in my name and in response to the question posed by the noble Baroness, I begin by saying that it is not my intention to divide the House.
The report before the House reaffirms the House’s commitment to the inquisitorial method of dealing with complaints and rejects the adversarial system. Its position is fully summarised in paragraphs 36 to 38 of the report, to which I shall very shortly return. I disagree with that conclusion.
The report’s conclusion is wholly inconsistent with the procedures that Parliament has, by statutory instrument, imposed on all the professions that I have ever encountered. Since 2010, I have practised exclusively as a legal assessor—that is, a legal adviser—to the panels which regulate doctors, nurses, midwives, social workers and all the professions which fall under the supervision of the Health and Care Professions Council. I have done hundreds of days of that work since 2010, all at appropriate times, duly registered.
As to purposes and consequences, there is no serious distinction to be made between the regulation of the conduct of Members of this House and the regulation of the conduct of members of those professions. All those professions are required by Parliament to use as an essential part of their regulatory procedures the adversarial system, which is rejected in the report. The decisions as to fact and sanction in those jurisdictions are all made by an independent tribunal. The respondent in all those jurisdictions is entitled to full legal representation, including the right for the representative to cross-examine and to make submissions.
The role of the regulator is a limited one. The regulator acts as an investigator into the complaint, and if the regulator concludes that there is a prima facie case, its role is to present the case before an independent tribunal, often by means of a lawyer instructed for the purpose. The regulator is not the arbiter of either of fact or sanction and, in my view, the commissioner’s role should be similar and limited.
The report suggests that the adversarial system, in particular the cross-examination of parties and witnesses,
“would result in a long-drawn out and expensive process … undermining … the principles of natural justice and fairness”.
That sounds to me awfully like an argument for putting convenience before justice. To be fair, other criticisms are made in paragraphs 36 to 38.
The problems encountered with regard to complaints and to the proceedings against Members of this House are precisely the same as those encountered in all the jurisdictions to which I have referred—indeed, in most other legal interparty proceedings.
Relevant concerns—and there are concerns—can be and are met by a number of special measures, which time prevents me articulating. In all those other jurisdictions, complaints are often made by one colleague against another or by an employee against a superior, but such problems are not a barrier to effective regulation.
There is no time in this debate to argue in detail the merits of the adversarial system, so I shall conclude with this general assertion. There must be a presumption in favour of the House following in its own procedures the procedures that Parliament has imposed on everybody else. I suggest that only the most powerful arguments should displace such a presumption, and I cannot identify those arguments. Therefore, I believe that this House should adopt the procedures that Parliament has imposed on everybody else. Although I do not intend to divide the House, I beg to move the amendment standing in my name.
Viscount Hailsham (Con)
My Lords, the debate has been a very full one, and the points have been articulated in respect of the amendment I have moved. I understand fully that the sense of the House is not at the moment in favour of the point that I have moved, and I do not want to trouble your Lordships any further. That being so, I beg leave to withdraw my amendment.