Lord Eames
Main Page: Lord Eames (Crossbench - Life peer)
Baroness McIntosh of Hudnall
Well, my Lords, I say that for this reason. It has not been put to us in the amendment that the Code of Conduct and the guidance that goes with it is flawed. That has been said by other speakers, but it is not in the amendment. The amendment says that the commissioner has failed to apply the Code of Conduct and the guidance that goes with it effectively and in accordance with the principles of natural justice and fairness.
If it is not said that the Code of Conduct is in itself flawed and therefore cannot be applied in that way, the fault appears to be hers and it therefore must be—must it not?—that she has applied it either because she is incompetent or knowing that she was applying it unfairly. That is a grave allegation to make against someone who this House has appointed to carry out its wishes in respect of a Code of Conduct which, we are now being told, is or may be flawed and is or may be in the process of being discarded. She could only apply the Code of Conduct before her at the time of the investigation.
Whatever the rights and wrongs of the case that she considered—like everyone else here, I am in no position, nor would I wish, to make any comment on that at all—it is, and I shall choose my words carefully here, perhaps regrettable that Members of the House have chosen to attack a public servant who is acting on its behalf when there is apparently no evidence that she acted either incompetently or in bad faith. For that reason, I must say that I cannot support the amendment of the noble Lord, Lord Pannick.
Lord Eames (CB)
My Lords, it is with degrees of trepidation that I take part in this debate, particularly as it is dominated by wonderful legal brains. My reason for speaking is that many years back now, I was asked by the then Leader of the House to lead the group that was to set up the Code of Conduct. In November 2009, our recommendations for the Code of Conduct were unanimously accepted by this House. Since then, with some technical adjustments, that code has remained in place and we have all lived with it, under it and, in a sense, for it. It is on a sad day—I use those words explicitly—such as this that we have to re-examine what we have accepted for many years. I am therefore in no way questioning what has been said in the amendment by my noble friend Lord Pannick, nor what has been argued by other lawyers. I want briefly to appeal to the House to remember that in the early stages of our current Code of Conduct, there was real anxiety on the part of the House that it should not become a lawyer’s charter and that we should avoid the adversarial approach to cases that were brought before us.
The background to that early production of a code was the self-regulation philosophy of your Lordships’ House. We have protected that and argued for it over the years, and it is something that we should be proud of and protect to the end as being one of the strengths of your Lordships’ House. So it was in those early days, when people argued that there would be occasions such as this when a case would be raised which would have something to do with the wording of the code, that we had to have some form in which we could avoid that adversarial approach or, I say again, the lawyer’s charter.
We came up with a phrase which has now endured all those years. It is simply put: personal honour. If you examine the wording of the report which we produced, and which still stands on page 4 of the Code of Conduct, you will see that we tried to analyse what personal honour means. We did so in ways and in words that I believe envelop individual cases, not least the case of the noble Lord, Lord Lester. In the list of the words that we have put in our report, we have covered virtually every incidence that could come before the Privileges Committee and then to this House; for example, selflessness, integrity, objectivity, accountability, openness and honesty are some of the words that we suggested. I am not referring to the individual facts of this case, but I am defending the Code of Conduct and our method of investigating issues such as this case, and appealing to the House to remember that the spirit of this House demands the degrees of honesty and consistency, which I submit is present in the way in which we operate the Code of Conduct in this House.
Lord Woolf (CB)
I have listened to the speeches that have already been made, and I start off by declaring my interest. I am afraid that, in relation to issues before us, I have more than one interest to declare to the House. The first is that I have known the noble Lord, Lord Lester, for many years, and my family and his family are friends. I emphasise that I am not acting on his behalf; I was never approached to act on his behalf in submitting to this House my view on the issues before us. Secondly, I emphasise my professional career as it appears in the register, which I do not need to elaborate on because I know it is before the House and, I respectfully say, speaks for itself.
I should disclose that I have conducted a number of investigations. I have been fortunate in that I have been entrusted by Governments, not only in this country but in others, to conduct those investigations and advise. I disclose that I am the editor of one of the leading textbooks, now in its eighth edition, which deals fully with the question of natural justice. I refer to that because natural justice is central to the issues before us. Although the noble and right reverend Lord, Lord Eames, is absolutely right about the problems of getting involved with court procedures—to use a euphemism for what he was seeking to describe—the fact is that whether you are deterred by that or anything else, anyone whose life’s work and reputation, acquired during his working life, are challenged is entitled to natural justice as a minimum, basic element of any form of investigation. Knowing what natural justice is, and being conscious that we are at the 20th anniversary of the Human Rights Act, I emphasise that that is particularly important when a person is put in a position such as that of the noble Lord, Lord Lester.
The word adversarial is one that nearly always involves cross-examination. But the word inquisitorial does not mean that you cannot have cross-examination. That is contrary to the sense of the word, and the ignorance about that is very worrying to me. For a time, I was chairman—as the noble and learned Lord, Lord Brown, is now—of the sub-committee which dealt with these matters as they then were. Having done that job for a time, I decided that the provisions were wholly unsuited to the purpose they were meant to cover. I was deeply uncomfortable that they were not fit for purpose, and I made that clear to the authorities of the House. That is based on my experience, to which I made reference.
With that background, I come to look at the code as it is now. There is nothing that I would object to in it. There is nothing I would object to in many cases—not allowing lawyers to come anywhere near the process—but I emphasise that that is on the basis of looking at the issues that have to be determined and deciding what procedure is appropriate. The ones we are dealing with—what the commission had to deal with and two committees had to consider, as well as the commissioner—were peculiarly difficult to resolve in some cases. They are peculiarly difficult especially when there is a sexual connotation, which is what is complained of here.
I go back a long way as a judge and barrister, and remember when it was required in common law that when an allegation is made, corroboration is required. In addition, it was the duty of judges to warn a jury that it was dangerous to convict unless there was corroboration. It was also well-established that complaints made at the time are not corroboration. I say that only because—I do not blame the commissioner—the position in law today is much more flexible. A complaint is not corroboration but it is very easy to see it as such, and the commissioner in this case saw it as corroboration. She was saying that because of the complaint, there was no need to investigate other things. She was wrong on that because unfortunately, the common law acknowledged what we have to acknowledge today: that there are sometimes motives for making false allegations in cases involving sexual conduct which disguise the reality of the situation.
It is all too easy to say that, because a complaint is made, the matter is proved, because you think that the person who gives evidence of the complaint is speaking the truth. They may be, but that does not avoid the need to answer the question whether the person making the complaint is telling the truth when she makes it. This is just the basic experience of lawyers such as myself who have had to try these cases.