Privileges and Conduct

Baroness Hussein-Ece Excerpts

Thursday 15th November 2018 Lords Chamber

Therefore, I ask the Privileges and Conduct Committee not to press this matter to a vote but to say at the end of this debate, “Perhaps we should think again. We think that perhaps Lord Lester should have another crack of the whip”, as my noble and learned friend Lord Woolf called it, “and that this case should be properly tried by whatever the process is but with the credibility of the witnesses properly tested”. Not to do so would send a message to the whole country and the whole world that we do not treat the rule of law sufficiently seriously.

[Baroness Hussein-Ece (LD)]

My Lords, I rise to speak as a minority in this debate. First, I am a woman; secondly, I am not a lawyer; and thirdly, I am not a friend of the noble Lord, Lord Lester. Having said that, I am very friendly with him—he is a colleague and I respect him enormously for the work he has done over his very long and distinguished career. Also, I have helped and supported women and girls who have faced unwanted sexual harassment in the workplace. Over 20 years ago in my career in local government and as a trade unionist, I sat on many disciplinary hearings of harassment in the workplace at which decisions had to be taken on whether the accused or the accuser was telling the truth. It was not a court of law but an internal disciplinary hearing and decisions had to be taken.

I myself was subjected to harassment when I was younger. I did not feel that I could complain about the individual, who was much more powerful than me—I was a very junior member of staff. I certainly do not think that I would have the courage to do what Ms Sanghera has done in this instance: make a complaint about someone who is obviously well connected and powerful. When looking at balancing this debate, we need to bear in mind how we are perceived outside our bubble here. Towards the end of his contribution, the noble and learned Lord, Lord Woolf, said that he would be concerned if, as a result of these sorts of cases, women were reluctant to come forward. If you think about it, why would they? There is adverse publicity and stress, and the effect on their family and friends is enormous.

I am disappointed that some contributions have strayed into discussing Miss Sanghera as an individual, cherry picking from the report about what she did and did not do, her age, her conduct and what she may have achieved as a well-known woman in public life. When she came forward—I read what she said—she felt that she was a woman who for many decades had been encouraging other women to come forward, particularly from her and other minority communities. We in this Chamber express a lot of concern that these women do not have a voice. We care that in their own communities they may be repressed and not encouraged to go out into the workplace. She has done a lot of work encouraging girls and women to come forward—for example, those who might be subjected to forced marriage or FGM, or child brides. She has done a lot of work on that.

Because of what she alleges happened to her, she felt it would be hypocritical to advocate other girls coming forward if she herself could not come forward. That is a very logical explanation, and I accept that that is why she felt the need to do it after so many years, with the benefit of hindsight. She has been criticised, as have other women who have been victims of historical sexual abuse, rape or assault, for not coming forward at the time. I heard a Member of this House this morning on the radio saying that women should come forward straightaway. If they do not go straight to the police—she did not say this, but it was implied—somehow they should not be believed. That is such a dangerous thing to say. What about those who have experienced historical child abuse? How is that going to be proved? How brave must those men and women be to come forward after decades when they suffered in the past? We have to be very balanced and cautious in this debate. I am not going to stray into the legalities—I am not a lawyer—but I know about natural justice. I know what women go through and how difficult it is. I have some personal experience. My daughters have had personal experience. Most women have had personal experience of this.

Look at the report produced in the other place, in Parliament, on sexual harassment and bullying. The sheer numbers of staff being sexually harassed and bullied in the workplace by MPs was staggering. The argument could have been that maybe this is a new phenomenon. It is not, is it? The new phenomenon is that, thank God, we live in a society where women and girls can speak out. This is not acceptable behaviour. That we have not heard of it before does not excuse it. It is a good thing to shine a light on this sort of behaviour and, as lawmakers, stand up to ensure that it is unacceptable. We do not want this in a modern society. Why should women and girls be harassed sexually or made to feel uncomfortable in their workplace, and that they cannot complain because they may lose their jobs? This is totally wrong. I have been very uncomfortable. I know I am in a minority on my Benches, but I do not think I am in a minority with women outside this House. I believe that the tide has changed now, and we need to catch up with it. The fact that this is the first time these procedures were used for a case like this, and that there was never a procedure for sexual harassment before, makes the case that it was perceived that it could never happen. We know it does take place. We do not know the numbers or all the cases, but we know it happens.

I put it to those here who are better placed to put together a new set of procedures that we need procedures, if these are not fit for purpose, for this situation. I note that our procedures were never challenged before, with other Members who were judged and suspended from this House, or had sanctions against them. Why were they never challenged before if they are not fit for purpose? It seems strange that now they are being judged as not fit for purpose.

I urge that, if this motion is not supported today, we do not send out a message that women are not to be believed or that, because they delayed coming forward, somehow they—or the process we have chosen and used, the commissioner we voted for—should be criticised. We thought it was fine—why would we vote for this? With respect to many of the noble and learned Lords here, why did they never before flag up that this was not fit for purpose? Why did we not hear about that? I am sure we should have. With the benefit of hindsight, perhaps we need better procedures. More cases may well come forward. I have huge respect for my noble friend Lord McNally, but I just heard that he had never heard a whisper before.

[Lord McNally]

My Lords—

[Baroness Hussein-Ece]

No. You said about the noble Lord, Lord Lester, that, because he was a friend, you had never heard—

[Lord McNally]

I never said that.

[Baroness Hussein-Ece]

You did.

In the #MeToo movement, it takes one brave person to come forward. I have already heard rumours of others. Other women—it is usually women—think “I can come forward too now”, because there is a precedent. It was the same with the child abuse scandals. It took decades before those who were abused terribly as children had the courage to come forward. I am sure that is the case with many women as well. I am sure there will be other women—I am not speaking here about the noble Lord, Lord Lester. It has happened with MPs. We must not judge that women who come forward years or even decades later are somehow not telling the truth. Mentioning their age is irrelevant. It could be anybody. I admire what the noble Lord, Lord Lester, has done over the years; we all admire him. But I saw this written somewhere and I thought it very apt: human rights have been enshrined in laws, but we must begin at home. How do we treat people who are not powerful, who do not have powerful friends or friends sitting in your Lordships’ House who can speak and advocate on their behalf? We must begin at home and remember why human rights have been enshrined in our laws. It is to protect the little person as well.

[Lord Mackay of Clashfern (Con)]

My Lords, the most severe burden that anyone has to carry is adjudicating upon the conduct of our fellow citizens. Many of us have done that as judges and even more as magistrates. It is a very heavy burden indeed, and one which, in this situation, we have to shoulder in respect of a colleague in this House. The responsibility has been put on the Committee for Privileges and Conduct to refer the result of an inquiry to the House. That is what we have done. The committee is composed of the leaders and Chief Whips of all the parties and the Convenor of the Cross Benches. There are also one or two others in it, of whom I happen to be a member. I have been a member for a long time.

I certainly find it a heavy responsibility, because two parties are involved: the complainer and the person against whom the complaint is made. When the complainer decides to come forward with a complaint, they have before them the rules that are to govern the procedure. Therefore, I do not think it is open to this House, if it is to be fair, to alter the rules as they apply to this case. We are bound to apply the rules as they were to this case. As the noble and right reverend Lord, Lord Eames, has pointed out, these rules, in substance, have been approved by the House for a long time. Certainly, my noble and learned friend Lord Woolf says he gave up because he thought it was not fit for purpose. I never heard that complaint and, as far as I know—I am subject to correction and, like many of my friends, I am not at all infallible—it has not been put by any Motion on the Floor of the House. That is my recollection.

The procedure has been laid down in considerable detail in the code of conduct, which says that the procedure to be used is that which is set down in the guide. Therefore, the commissioner and all the committees that dealt with this were bound by the rules that presently exist. It would be extraordinary to try to alter these rules while a case is being considered and after the complainant has put in her complaint. The commissioner is directed as to what to do if there is a conflict. She has to consider both sides and make sure that the person complained against has the opportunity to object. She put all the evidence she had before the noble Lord, Lord Lester, and he had full opportunity to comment on it.

Cross-examination has been referred to. It is, for example, an important part of our criminal procedure. But look for a moment at the opinion that the noble Lord, Lord Lester, obtained. On page 75 of the report, there is a quotation from the High Court of Australia, and it is interesting to see how it puts it—I had better put my glasses on so that I can read it properly. It states:

“Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial”.


That is the adversarial system. The system applied by the rules that this House has approved for almost 10 years —it is nine years, I think—is the inquisitorial procedure. Therefore, it is left to the commissioner to assess the credibility of the people involved by conversing with them in detail, as she has done with both the complainant and the noble Lord, Lord Lester.

I have to say that I have known the noble Lord, Lord Lester, for a long time. He knows that I have very high confidence in him, for reasons that I do not need to go into. However, we now have two people before this House: the complainer, who came to the House on the basis of the current rules, and the noble Lord, Lord Lester, who has sat under these rules for nine years without, as far as I know, bringing forward any complaint or amendment. In that situation, the Committee for Privileges is bound to consider the report of the commissioner and come to a conclusion, one way or the other, but it is not entitled to reopen the proceedings. The commissioner is given the responsibility of deciding where the truth lies.

The commissioner applied the balance of probabilities, which is required by our rules, but she said that, in the particular case she was dealing with, the consequences were serious and therefore she felt that—as the conclusion makes clear—there was cogent evidence from the complainer and her witnesses that this was proved. Therefore, she applied the balance of probabilities in the light of judgments such as that of Lord Nicholls. In that situation, I find it very difficult to see how we can modify the procedures that the complainant expected to confront when she launched her complaint.

--- Later in debate ---

[Lord Taverne]

My Lords, I practised at the Bar for 11 years a long time ago, but I have no experience of criminal law and I do not claim to have any special expertise. I think that noble Lords should look at this case from the point of view which has been put by the noble and learned Lord, Lord Woolf: has the person complained about had a fair crack of the whip?

There were some cases recently where a court said that statements made by someone bringing forward the accusation of rape were completely contradictory to the accusation—not only the statements but also the behaviour of the person making the accusation were quite inconsistent with her original charge. This was clearly an instance where the cross-examination of the person making the charge was essential. Looking at it from the point of view of whether my noble friend Lord Lester had a fair crack of the whip, can anyone doubt that there should have been a cross-examination, in this case of the accuser, of her reaction to the production of the books, how much she admired him, how on another occasion she asked after his health and had sent “love and kisses”. According to one witness, she behaved in a manner that suggested great friendliness for the accused some time later.

[Baroness Hussein-Ece]

Excuse me. This is very inappropriate.

[Baroness Jones of Moulsecoomb (GP)]

It is inappropriate.

[Baroness Hussein-Ece]

You are going through the case but you were not there.

[Lord Taverne]

It is highly appropriate. In those cases there was a complete inconsistency between the behaviour and statements after the event which conflicted with the accusation made. The convictions were quashed. Can anyone really argue that if there had been the possibility of cross-examination of the witness about the kind of examples which the noble Lord, Lord Pannick, gave in his original speech—the confessions of a very close relationship with the defendant—that sufficient doubts would have been raised for the charge to be dismissed?

[Baroness Hussein-Ece]

You are trying the case. Shame on you.

[Baroness Jones of Moulsecoomb]

Yes. Shame on you.

--- Later in debate ---

[Lord Pannick]

I have no quarrel with the good faith of the commissioner. She did not conduct a cross-examination; she did not appoint someone to do it; nor did she allow the noble Lord, Lord Lester, through his counsel or his solicitor to do so. If the noble and learned Lord were to look in the Times today and see the letter from the solicitor to Ms Sanghera, he would see that he does not suggest that a cross-examination was carried out; his argument is that it was not necessary and fairness did not require it.

The noble Baroness, Lady Hussein-Ece, expressed concern about how we are perceived outside this House and said that we must be careful not to deter complaints. I do not accept that for us to follow a fair procedure that applies in all other contexts would either deter genuine complainants or damage our public reputation. On the contrary, we would be recognising and applying standards of fairness that are universally recognised in all other contexts.

[Baroness Hussein-Ece]

Of course I am concerned about that. The noble Lord seems to suggest that the procedures that we have adopted are not fit for purpose, but he has not said why his friend, the noble Lord, Lord Lester, went along with it. If it was so unfair, as someone as eminent as him would know, why on earth did he go along with that procedure and why was nothing said before?

[Lord Pannick]

I am sorry to say to the noble Baroness that that really is a very bad point. The noble Lord, Lord Lester, faces a disciplinary inquiry by this House: he either plays no part in it or he does the best he can. It really is no answer to the complaint that the commissioner applied an unfair procedure that the noble Lord, Lord Lester, did the best he could in order to satisfy the commissioner that the allegations were unfounded.

I have had the privilege of being a Member of this House for 10 years and I have always regarded the House as a very fair-minded place. We listen to the arguments and try to take a fair decision. We do not proceed, as the noble Lord, Lord McNally, pointed out, on the basis that we have to get behind the commissioner, the sub-committee and the Committee for Privileges, for all of whom, on a personal level, I have a very high regard. The question is whether the procedure applied to the noble Lord, Lord Lester, accorded with paragraph 21: was it in accordance with fairness and natural justice? I am very disappointed that the Senior Deputy Speaker did not think, in light of this debate, that the appropriate response would be to say to the House that he would withdraw his Motion and take it back to the Committee for Privileges and Conduct for further consideration. He has not adopted that approach. As your Lordships know, very strong feelings are felt on both sides of this debate, so I would like to test the opinion of the House.