Baroness Butler-Sloss
Main Page: Baroness Butler-Sloss (Crossbench - Life peer)
Lord Woolf (CB)
My Lords, I should begin by referring to my interests in the register and stating that I took part in the debates relating to Lord Lester, to which I shall refer in a moment. In that regard, I am pleased to be able to say that I consider Lord Lester a personal friend.
Today we have taken a new look, rightly, at a subject of considerable importance: how this House proposes to tackle conduct that has apparently become more prevalent recently than it was in the past; namely, instances of individuals in a position of power taking advantage of that power to bully, harass and commit sexual misconduct involving individuals in a less powerful position.
It is important that the House should act in accordance with the rule of law and is an example to other institutions—here, I pay recognition to the improvements recommended in the report which we are considering. Undoubtedly, those who had that responsibility have given careful attention to the problems and put forward what they regard as the best proposals that at this stage it is possible to make. Those proposals are certainly to be welcomed as an improvement.
I say that remembering that Lord Lester was successful in the first debate in relation to his conduct but that in the second the position was reversed. That perhaps illustrates the difficulties involved. I am not in the least surprised that those who have spoken before me have made comments which could be regarded as being critical of what is in the report but at the same time have felt it possible to welcome what is now proposed.
After the second debate, I was left with the uncomfortable feeling that Lord Lester did not receive the fair treatment to which he was entitled. In saying this, I have no insight as to his guilt or otherwise. However, irrespective of his position, he remained entitled to a procedure which was fair. Although cross-examination was not an essential requirement in the circumstances in which he was involved, the fact remains, as others have said, that without cross-examination it is very difficult and sometimes impossible to ascertain where the truth lies when two people give different accounts which are wholly unsupported in either case. I was therefore delighted that the House decided to hold an inquiry conducted by an eminent QC into the procedures which should apply in this type of case.
I was also pleased that the House thought it proper to conclude a process of consultation, although I was surprised that it was restricted to four topics, as noble Lords will see from the top of page six of the report. However, the report also makes it clear that if comments were made outside those four headings, they would be taken into account; indeed, they were. I hope that when Miss Ellenbogen’s report is made available in the summer, as expected, the House responds to it appropriately.
I turn now to the proposals contained in the committee’s report. Like other noble Lords, I wish to identify the ones I regard as particularly important, such as those amending the Code of Conduct and the guide to the code. I emphasise that paragraph 6 of the introduction to the report states that the proposed changes will include,
“a new set of processes for investigating complaints”,
of the type with which we are concerned; namely,
“bullying, harassment or sexual misconduct”.
Paragraph 29 on page 10 states:
“We recognise the clear need to implement specific and appropriate processes for reporting and investigating complaints”,
of the type with which we are concerned. These processes are intended to,
“work fairly and effectively for both members and complainants and provide appropriate support for both … and to draw on the growing evidence base on best practice for addressing such behaviour”.
The proposal I regard as of the greatest importance is that, where appropriate, the commissioner should be supported by a team of independent investigators appointed by Parliament, and that the commissioner may delegate any of her investigatory functions to them. The significance of this proposal—I believe I share the view of the noble Lord, Lord Thomas, here—is that it will produce a situation similar to that regularly adopted in public inquiries to appoint a counsel to the inquiry. A single commissioner acting alone may find it almost impossible to find the truth in this sort of case. The report does not indicate who the independent investigators will be, nor the qualifications they will have. However, I am prepared to rely on the fact that the commissioner is responsible for conducting a full investigation on behalf of the House, and that the House will ensure both that those who are appointed are fully qualified to do so and that the truth of the complaint can be assessed quickly. If I am right in making this assumption, my greatest reservation about the procedure in its unamended form is largely met because, for example, legal advisers can assist in conducting cross-examination if they wish to do so. I cannot see anyone objecting to questioning in that form.
Baroness Butler-Sloss (CB)
I wonder whether the noble and learned Lord understands that none of the investigators will be lawyers.
Lord Woolf
I am grateful to the noble and learned Baroness for drawing that to my attention but it is not stated in the report.
Lord Woolf
Perhaps the Senior Deputy Speaker can confirm that. If that is the case, I suggest that it is a mistake; I hope that the investigators will be experienced. They may not have the particular qualifications of a barrister, but they may be familiar with legal proceedings and able to play a prominent part in the informal domestic forum I hope will exist in respect of these complaints. Even if they are not lawyers and they do not have previous experience, in time they would develop it by doing the very job that a lawyer often does. The important thing is that the commissioner should have skilled assistance because she is not meant to do everything herself. She should be able to delegate, as is proposed in the report.
The other matter I will refer to is the powers of appeal. As has been said, they are similar to those on judicial review. Those who have experience of judicial review will know, as I do very well, that it can be an excellent form of appeal, especially in respect of tribunals of the sort which are involved in investigating these complaints. The powers on judicial review are attuned to the purpose of ensuring that the role of justice is properly protected and it is of significance that reference to judicial review is made on the final page of the report. It is right that that should be so.
For the reasons I have indicated, I hope that this will mark a real improvement. I am sure that what existed before this report should not be allowed to continue any longer if that can be avoided.
Lord Hogan-Howe (CB)
My Lords, I had not intended to speak but I will, perhaps for the same reason that the noble Lord, Lord Pannick, did. The noble Baroness, Lady Hussein-Ece, does not need my support, but I offer it. I echo the noble Lord, Lord Campbell-Savours, in commending her courage, but I came to an entirely different conclusion based on the same evidence. I agreed with almost every word that she said.
My first point is on inquisitorial compared to adversarial. The people who support adversarial seem to agree that the process can potentially damage someone’s reputation, but they forget that the 99% of people in this country who are employees can suffer a similarly damaging consequence: namely, loss of employment. Their employer can make a decision to remove them from their employment, which will damage their reputation, and they may not have the benefit of a lawyer. As it happens, a police officer does, because they are not an employee; they are governed by police regulations. This is more akin to an employment issue than to a crime. The consequence is not going to prison for life but being deprived of the use of this place and of the titles and privileges that go with it.
My second point is on cross-examination, which clearly has had many benefits over time but is not infallible. Some of the most serious miscarriages of justice in this country have resulted from processes that have involved cross-examination and yet have not discovered the truth. As we have had to readdress in the last 48 hours, it has also damaged some victims, because the process can go on to destroy the victim, not necessarily always to defend the suspect. These things are changing, but we have to accept that this has happened over time.
I end where the noble Baroness, Lady Hussein-Ece, and the noble Lord, Lord Evans, did. This is not a perfect process: I would support far more—possibly total—independence going forward, because we need to prove to the outside world that, contrary to perception, we are prepared to stand the judgment of our peers outside, not our Peers inside. July is only a matter of weeks away, so we need a far better interim process in place to have succour for ourselves. I sat here in November and got increasingly angry, sad and uncomfortable. I have been in the House for only two years, but I thought it was awful. We should not go through that again. I think all noble Lords accept that, on reflection, we could have acted better. Some—including the noble Baroness, Lady Jones, who is not in her place—acted courageously. Before we go to the adversarial system, we need to think seriously about how others see us as well as how we can improve our process, which this report intends to do.
Baroness Butler-Sloss
My Lords, at this late stage I shall be very brief—I confess of course that I am a lawyer—and say something about adversarial and inquisitorial, because there may be some misconceptions. I am delighted to hear that there will be a panel of investigators. I would expect most of them not to be lawyers, but to be able to do practical investigation. That seems to be entirely sensible. We need to differentiate between the different sorts of cases. There will be cases of harassment or bullying, which are nasty and will possibly require suspension from the House. There will occasionally be cases such as Lord Lester’s. It is in relation only to that type of case that something slightly different should take place. As the noble and learned Lord, Lord Woolf, said, it is not a good idea to have the person who is adjudicating also being the investigator. There are problems in that. I am not criticising the current commissioner; I just think that she could have done with some help.
I have a suggestion about the best thing in the very difficult case of a stark difference of evidence, where one has to resolve who is telling the truth; because only one person can be in such a—thankfully rare—case. In such a case the investigator should, in my view, be a lawyer. However, it is appropriate only in that rare case, where the reputation of the victim is important, but so is the reputation of the Peer, who is almost certainly going to be excluded from the House for ever and whose reputation will be completely destroyed. At that point, you do not want cross-examination as such, but you need a sensible, discreet member of the Bar who can ask appropriate questions, without being disagreeable about it, to try to ascertain the truth from the parties who are being asked these questions. I put it to the House that there are rare cases where the commissioner may need the help of a lawyer rather than the ordinary investigator we are talking about.
Lord Pannick
Does my noble and learned friend agree that, in her experience, many inquisitorial processes take place throughout the country, on a wide variety of subjects, where lawyers are involved and there is a degree of cross-examination by counsel to the inquiry and lawyers representing the individuals? The fact that it is inquisitorial does not mean that those protections are removed.
Baroness Butler-Sloss
I entirely agree. I have chaired commissions, committees and so on, particularly the Cleveland child abuse inquiry, where there were a great many lawyers. I am not suggesting any of that for this, but I think we need to adjust the way in which the issue is tried according to its seriousness and the likely outcome, if it goes the wrong way, for the Member of this House who will be permanently excluded.
The Senior Deputy Speaker
My Lords, I thank the 17 Members who have contributed to the debate. I have notes to respond to every one of the 17, but I know I will be stretching the patience of the House if I start to do that, not least because the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the chair of the sub-committee that devised these proposals for the P&C committee, has expanded on that issue.
I commend the House today for the constructive debate and the spirit in which it was held. It underlines the fact that this is a significant move forward. We have near unanimity, with 16 people telling us it is going in the right direction and one person saying that it is maybe going in the wrong direction. That near unanimity is extremely important.
I want to comment on the contribution of the noble Lord, Lord Evans of Weardale, who, in his position as chairman of the independent Committee on Standards in Public Life, has met me on two occasions. He sent us a letter as part of the House of Lords consultation on the implementation of the process, among 27 others who responded. I shall read just one sentence from that letter:
“Any self-regulatory regime must include a strong, resilient and robust independent element”.
The spirit of today’s debate shows that we have done that.
I mentioned at the beginning that this process is not finished. Naomi Ellenbogen has been mentioned; I shall be meeting her next week. She has asked to meet me and others in the House and I do not see why others, if they wish, should not contact her. I believe that some 121 people have approached her and that she has spoken to more than 170. The more people she speaks to, the better, and I encourage Members to do that.
A couple of comments were made about staff and support for staff—I think by the noble Baroness, Lady Berridge. When I received the letter from the 74 members of staff, I spoke to quite a few individually; they were depending on our putting in a robust process. All I can say is that, without going back to them in detail on that, my feeling is that they feel that we are taking a step forward; so both Members and staff feel that something positive is happening here.
A point was made about what support there is. Helplines are envisaged and there is support for mediation. There is also the issue of signposted professionals. The professionals who have been engaged here have been in this field of mediation for a long time, and the information we have, in both the Commons and the Lords, is that they will support the process. This has balanced the relationship between complainant and Members; it is important that both have the support of the House. I am confident that we will get a new system, but until the new conduct committee is established, I will be happy to engage with people and pass on what is said. However, if your Lordships pass this Motion today, this will be my last time at the Dispatch Box on this issue. I thank all noble Lords for their contributions and for the spirit of the debate today.