Baroness Stowell of Beeston
Main Page: Baroness Stowell of Beeston (Conservative - Life peer)
Lord Butler of Brockwell (CB)
My Lords, I want to say a few words because, very unusually, I want to express a different view from that of my noble friend Lord Pannick, the noble Viscount, Lord Hailsham, and my noble friend Lady Deech.
Having taken part in the debates about Lord Lester, I of course recognise that when the House has the responsibility of reaching a verdict on the conduct of one of its own staff or Members and on any sanctions attaching thereto, it is vulnerable to the appearance of conflicts of interest. Quite understandably, this debate has concentrated on the subjects of bullying, harassment and sexual misconduct, which come into the code of conduct for the first time. But we have to remember that the code of conduct is hugely about other matters, not just those three; in fact, paragraphs 10 to 106 are about other matters that reflect the rules of the House.
Breaches of the code of conduct, including those in the future relating to bullying, harassment or sexual misconduct, will often be breaches of the criminal law. In those cases, it is obviously right that the inquiry should be entirely independent. It should be carried out by the police, have lawyers on each side and be subject to the courts of law.
In this case, even with our distaste for bullying, harassment and sexual misconduct, we are talking about something short of breaches of the criminal law. We are talking about the rules of the House. It seems anomalous that, in a self-regulating House, the ultimate decision on those breaches and the sanctions that attach to them should not be a matter for the House itself. I therefore agree with the report, which introduces a procedure in which there is an independent investigation and a committee with a significant element of independent members, but the discipline committee is chaired by a Member of the House and has a small majority of Members of the House on it. When we are talking about the rules of this body, like any other institution, it should ultimately be for this body to decide whether those rules have been broken and what sanctions should attach to it.
I welcome the respects in which the report makes changes. I welcome that it brings in bullying and sexual harassment, and I support the other changes, including the widening of the code of conduct to parliamentary activities, not just parliamentary duties. As I have said, I believe it is right that the discipline committee should have a small majority from the House because that seems consistent with a self-governing House. I also welcome the encouragement to the commissioner to call upon the support of teams of independent investigators to help establish the facts; in the case of Lord Lester, I felt that aspects of the way in which the commissioner carried out her investigation were defective.
One aspect of the report gives me pause—here, I follow the noble Lord, Lord Thomas of Gresford—and that is the proposed change to Standing Orders so that a report of the discipline committee is put to a vote of the House without debate. I see the dilemma here. On the one hand, like others, I am anxious to avoid the House getting involved in distasteful debates and votes, as in the case of Lord Lester. On the other hand, it seems that to vote on a question without any opportunity for debate is to go through the formality of obtaining the House’s assent without any reality in the substance; it is, to coin a phrase, “a meaningless vote”. Therefore, like the noble Lord, Lord Thomas of Gresford, I would prefer that the report of the disciplinary committee be subject to a take-note decision and not to a vote without debate.
Baroness Stowell of Beeston (Non-Afl)
My Lords, I welcome the report. I see it as an important step forward. It is right that a new committee is established and I support that committee including lay members. Whether or not there should be more lay or independent members in due course is a topic for further consideration. I am not sure I support those noble Lords who have argued for complete independence for the disciplinary regime of this House, because it is an important responsibility for us as Members to uphold the House’s reputation by being prepared to take appropriate action when one of us does something wrong. As the noble Lord, Lord Butler, said, it would be a mistake for us to completely delegate responsibility for that to an independent body.
Paragraph 24 of the report mentions a disrepute clause. My position on this does not lend itself to the debate on investigation versus inquisition but, since the report refers to disrepute, I want to take the opportunity to highlight why I think it is important for us as a House to understand that we carry a reputational risk at the moment. If a Member’s misconduct outside this House is so serious that their continuing membership would bring the House as a whole into disrepute, currently we are powerless to act. This is compounded because, being an unelected House, we are powerless to act if a Member in such a situation does not resign. I am talking about disrepute in a way which refers to something happening outside a Member’s parliamentary responsibilities and activities—in another part of their life—but which is extremely serious and becomes public. If that person continued to be a Member of this House, it would bring the whole House into disrepute.
When I was Leader of your Lordships’ House, I spent about a year working on a disrepute clause and was assisted by several noble and learned Lords. This work was presented to the Privileges and Conduct Committee and was accepted by the committee at that time, but it never made it to the Floor of the House. It has remained in abeyance ever since. When making her argument about the need to specify what might constitute disrepute, the noble Baroness, Lady Deech, indicated, as does the report, that it is too difficult to define what would be captured by such a clause—I believe this is one of the reasons why this measure has never become part of our disciplinary actions. However, that somewhat misses the point. We should never have to define what would be caught by such a power. We need to understand that if and when something so serious occurs, we would have the power to act in the way the public expect, precisely because the public do not have the power to act themselves.
I just wanted to note the fact that there is reference to disrepute in the report and that I hope very much that when the new committee is established it will consider this as part of its overall work plan, to strengthen our disciplinary regime.
Viscount Hailsham
The noble Baroness has identified a very considerable problem. It has been addressed by the regulatory authorities, which have a concept of impairment of fitness to practise. In the case of Grant, Mrs Justice Cox gave a very clear indication of what would constitute impairment of fitness to practise. That is a model that this House might care to reflect on, to address the point that the noble Baroness has just made.
Baroness Stowell of Beeston
It would certainly be for the committee to consider how to approach this, but I make the point to the noble Viscount and the House more generally that the reason for not having a disrepute clause or the power to act if the conduct of one of us outside this House is so serious that for them to continue as a Member would bring the whole House into disrepute should not be because we have not been able to define specifically what would constitute such action. We should just have—and be able to show to the world outside that we have—that power to act in such circumstances that it is so obvious to us that that is what we should do.
Baroness Deech
The point I actually made was about the difficulty of defining acting on your personal honour. I also remind the noble Baroness, who once had a very senior position at the BBC, that even the BBC, one of our most independent and proud organisations, known around the world almost as much as this House, had a very incestuous complaints-handling scheme. In the end it was handed over to Ofcom, because that is the way things are going. Even the BBC had to accept that.
Baroness Stowell of Beeston
The reason why organisations pass responsibility in such circumstances to another body is because they have themselves failed to meet the expectations people rightly have of them. I am arguing that it may be that what some noble Lords have argued for in the context of the specifics of sexual misconduct, bullying and harassment is what should happen. Irrespective of that, it does not remove the need for this House to have the power to act in the circumstances as I have described them.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I think the House will know that for some years now I have had the honour of chairing the sub-committee. I promise I will not say a huge amount. I will first try to nail what I might call a loose point from the noble Lord, Lord Foulkes, about Lords Members’ staff. I might have got hold of the wrong end of the stick that he was waving, but on page 57, headed “Code of Conduct for House of Lords Members’ Staff”, paragraph 1 specifically describes the staff to whom these few paragraphs are directed. It applies to,
“staff who have a parliamentary photo-pass or email account sponsored by a member of the House of Lords for the purpose of providing parliamentary secretarial or research assistance to the member, including members’ spouses with an email account”.
If I have missed the point, so be it. No doubt he will pursue that matter later.
As today’s debate as a whole has shown, and as was perfectly apparent from the responses to the consultation process we had a month or so ago, there is room for a huge diversity of views on the huge number of interlocking issues, as the noble Lord, Lord Evans, said, that this report raises. Someone said there are 101 issues—a gross exaggeration: there are many more than that. The fact is that a lot of these questions overlap. Naomi Ellenbogen, Queen’s Counsel, who is, I understand, a member of the Bar Standards Board and is very well regarded, is to report at the end of July. She is hard at work on her report and seeing a number of people; I myself have been asked to see her in a couple of weeks’ time. I hope that one value of this debate is that she will be able to see the House’s views on a number of questions that have been raised.
There are one or two absolutely fundamental questions. One is whether we shall continue to operate an inquisitorial rather than adversarial process. There is no doubt an imperfect divide between the two, but that is a pretty basic question. Those such as the noble Viscount, Lord Hailsham, are in effect contending for an adversarial process. He helpfully nods to show it. There it is. It is obvious from the report that I, with colleagues on that committee, strongly support an inquisitorial approach.
A second basic question is whether the whole process should be totally independent of the House; again, there are those who contend for that. Can I throw into the mix one or two considerations? As we know, the House of Commons is operating on a 50:50 basis now, and following the recommendation of our sub-committee, it now gives its lay members a vote. There was a time when it was thought that giving lay members a vote would forfeit the privilege otherwise attached to these proceedings, but surely if you have an entirely independent process, with no Member of the House involved, you certainly do not attract parliamentary privilege. Now there are those—the noble Lord, Lord Thomas, among them—who would say, “Well, good thing, too”, and we are then subject to the review processes of the courts and all the rest of it. Again, I respectfully question whether that is a good idea. Certainly, the Commons does not seem to be thinking of going down that rather unusual route.
Another consideration is that if the whole thing is outside the control of this House and wholly independent, if and when it is necessary to impose some of these new statutory sanctions—expulsion, obviously, and suspension beyond the length of a current Parliament—there will have to be primary legislation, because at the moment it is the decision of the House to deal with these things. Therefore, one has to take a longer view than the idea of removing any involvement of this House. We all recognise that it is very desirable to have lay members. They introduce their external experience, and contribute greatly to the independence of the process. That too is helped here by the commissioner making the recommendation as to sanction, which at the moment she does not.
There is also the question of personal honour—and I can see that there is room for two views on this. The noble, Lord Thomas, suggested that it is difficult to define. It was a concept introduced by the noble and right reverend Lord, Lord Eames, in 2011, when the processes were last revised. It is the sense of the House, and therefore at the appellate stage you really would need some Members to be involved in overseeing it.
There are hosts of questions on the whole business of the process of investigation. I do not want to go into that. I say only that it is rather bizarre that of those who question the ability of our independently appointed commissioner and criticise her as being unable to conduct this process satisfactorily, and instance the Lester case, almost no one went to see all the factual material, including the transcripts, although there was an open invitation to do so. My noble friend Lady Deech did, after the debate, but before the debate only two people actually troubled to go and look at that material. One was the noble Lord, Lord Macdonald of River Glaven—who then made a speech saying that having looked at the transcripts of the commissioner’s interviews of the central witnesses, he was entirely satisfied that the procedure had been properly conducted. I do not want to go too far down this road, but he has a measure of experience as an erstwhile DPP, so I would caution those who want to begin altering what I suggest is a perfectly satisfactory inquisitorial process into something which is dangerously akin to an adversarial process.
I will make one point in respect of the specific arguments of the noble Lord, Lord Pannick. When you get to the appeals stage, I see that there may be room—I suggest that perhaps there already is, although you would need to have a Motion changing the Standing Orders before you can get there—and there may be a stronger case than was hitherto acknowledged for allowing some measure of representation, certainly in the case of any Member of the House who cannot properly conduct his own appeal. That criticism aside, I respectfully suggest that this report is a huge improvement on what has been previously accepted and I urge your Lordships to accept it.