Privileges and Conduct

Lord McFall of Alcluith Excerpts

Thursday 15th November 2018 Lords Chamber

Moved by

[The Senior Deputy Speaker]

That the 2nd Report from the Select Committee (The conduct of Lord Lester of Herne Hill) (HL Paper 220) be agreed to.

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

My Lords, in moving this Motion, I will speak also to the amendment to the Motion in the name of the noble Lord, Lord Pannick.

The report before us relates to a finding that the noble Lord, Lord Lester of Herne Hill, sexually harassed the complainant, offered her a corrupt inducement to have sex with him and warned her of unspecified consequences if she did not accept his offer. The complaint was investigated by the House’s independent Commissioner for Standards. She found that the conduct of the noble Lord, Lord Lester, was in breach of the provision in our code of conduct that all members must act on their personal honour. The commissioner’s findings were considered by the Sub-Committee on Lords’ Conduct, whose role it is to recommend an appropriate sanction. That sub-committee recommended that the noble Lord, Lord Lester, should be expelled from the House.

The noble Lord, Lord Lester, appealed to the Committee for Privileges and Conduct against the findings and the sanction. That committee considered a detailed set of papers on appeal and heard from the noble Lord, Lord Lester, in person. We dismissed the appeal of the noble Lord, Lord Lester, against the finding that he had breached the code and we endorsed both the approach and the conclusions of the commissioner.

In relation to the appeal of the noble Lord, Lord Lester, against sanction, we upheld his appeal against expulsion and recommend instead a period of suspension. The committee was conscious that at the time of the breach of the code, the power to expel a Member of the House, which has now been conferred by the House of Lords (Expulsion and Suspension) Act 2015, was not available. At the time the noble Lord, Lord Lester, breached the code the maximum sanction available was suspension to the end of the Parliament in which the suspension started. We concluded that the noble Lord, Lord Lester, should be suspended for a period coterminous with the maximum expected length of the present Parliament. We accordingly recommend that the noble Lord, Lord Lester, be suspended from the House until 3 June 2022. I should be clear that this is our recommendation to the House irrespective of whether or not a general election takes place before 2022.

My Lords, it may be helpful to the House if I say a few words in anticipation of the amendment of the noble Lord, Lord Pannick. The amendment suggests that the Commissioner for Standards did not conduct her investigation in a way that conformed with natural justice and fairness. This is a serious claim and one that the Committee for Privileges and Conduct considered very carefully, because it was a central point of the appeal of the noble Lord, Lord Lester. We were very clear in paragraph 12 of our report that we did not,

“accept Lord Lester’s contention that the Commissioner was at fault in the way she carried out her investigation”.

That was the unanimous position of all 14 members of the committee. In coming to that position we listened with particular care to the opinions of two of our members with considerable judicial experience, the noble and learned Lords, Lord Mackay of Clashfern and Lord Hope of Craighead. I hope that they will both speak later in this debate.

The amendment of the noble Lord, Lord Pannick, directs us to consider the procedures the commissioner followed in her investigation. Let me remind the House what they are. They are set out in the guide to the code and they are kept under review by the Sub-Committee on Lords’ Conduct, chaired by another member with considerable judicial experience, the noble and learned Lord, Lord Brown of Eaton-Under-Heywood.

Paragraph 124 of the guide to the code states:

“Proceedings are not adversarial, but inquisitorial in character.”


Then paragraph 127 says:

“Complainants have no formal locus once an investigation is under way: they have no right to be called as a witness, though they are expected to co-operate with any investigation and to supply all the evidence in their possession when asked to do so. Nor do members accused of misconduct have any entitlement to cross-examine complainants, though they are given an opportunity to review and, if they so wish, challenge the factual basis of any evidence supplied by complainants or others”.

--- Later in debate ---

[The Senior Deputy Speaker]

Perhaps I might point out to the noble and learned Lord, Lord Mackay, that the Guide to the Code of Conduct states specifically in paragraph 143:

“A meeting will be scheduled to hear the appeal and the member will be given an opportunity to appear in person, if he or she so wishes. The Committee may also take evidence from the Commissioner”.


So that is the basis for the commissioner giving evidence. On the day, the Privileges and Conduct Committee did not hear from the commissioner but, because later appeals were put in, we ensured that the noble Lord, Lord Lester, had the last word, and he was brought in for that.

[Lord Davies of Stamford (Lab)]

My Lords, of course we cannot change our procedures and rules once a case has started, but if we discover that there has been a breach of natural justice it would be right for the committee not to impose any penalty, and thereafter we would need to look at those rules and make sure that we got them right.

Four important issues have arisen from the debate on which the House should focus, because all of us feel uncomfortable about the present state of uncertainty on these matters. The first point is that it is quite clear from this case—if it was not clear already—that conviction under this procedure has the effect of being totally destructive of both the personal and professional reputations of the accused. It is analogous in that respect to a conviction in a criminal case. It is therefore right that the burden of proof should be the one that is applied in a criminal case and not the one applied in a civil case, where simply losing a civil dispute is not at all the same thing. That change ought to be made as soon as possible.

The second point which has arisen from the debate—and which is a matter of concern to a great many of us—is the issue of cross-examination. It is inherent in these cases that there is rarely any forensic evidence and the whole case turns on statements that are inconsistent with each other and facts which are disputed between the various parties. In those circumstances, it is right and essential that we are entirely clear that there must be a way of dealing with these disputes and this uncertainty. In the history of law no one has found a better solution than cross-examination, and so it should be introduced. As has already been said, cross-examination does not necessarily mean that we should give up our inquisitorial approach. It would require the commissioner or somebody on her behalf—a counsel or, indeed, the committee itself—to undertake the cross-examinations required.

I do not know when the rules were changed but I remember, shortly after I entered this House, reading with great admiration the deadly cross-examination carried out by my noble and learned friend Lord Irvine of a Member of this House who had been accused of a serious offence of a different type. There is no reason why we should not have cross-examinations carried out by the committee itself in those circumstances.

There should be a way of looking through the statements—many of which may be inconsistent and not entirely credible—to get at the truth. That has not been done in a rigorous way in the present situation. I was surprised and alarmed at the casualness of the way in which the commissioner dealt with the various witnesses. Some were contacted by email, some by telephone and some were apparently uncontactable. But it is not clear why they were uncontactable or what efforts were made to contact them—and there were no transcripts of any of the conversations between the commissioner and the complainant, the commissioner and the accused or the commissioner and the various witnesses. That is a thoroughly unsatisfactory situation.

Another thing that has not been mentioned and which emerges clearly from this case is that there are obviously great dangers and risks to justice when there is a long interval between an alleged offence being committed and the complaint about it being made. That is an undesirable situation. We all know that memories fade and erode over time and that after some years people can get muddled about conversations and events that took place. It is difficult to see through that and establish what the facts were.

Furthermore, such a situation works to the disadvantage of the accused. The accused might have the ability to produce an irrefutable alibi if he or she has the opportunity to do so within a few weeks or months of the events complained about taking place, but it would be impossible in most cases to produce that alibi if there is an interval of 10 or 12 years between the two events. This works to the disadvantage of the accused in a way that is worrying.

The committee has taken note of this danger and it has tried to produce a remedy—a rather extraordinary remedy—which, if I understand it correctly, is as follows: complaints will not be entertained more than four years after the events complained about took place, except that the commissioner may, if she wishes, override that and simply accept complaints that are older than that. The sub-committee would have the right to veto that decision by the commissioner.

This procedure is wrong in many respects. First, the commissioner should not be in the position of deciding on the rules of procedure, not on the basis of objective criteria but on the basis of her feelings about a particular case—ad hoc, ad hominem and ad feminam. That is not the way in which due process works. I am concerned about that. We should have a full statute of limitations—we have a half-statute of limitations here—and it should be quite clear that complaints that are made, let us say after four years, because that is the figure that already exists, will not be entertained on any basis.

The thing that concerns me most is that, although there are no objective criteria for deciding when you can accept a complaint after the four-year deadline, the commissioner in this case set out the reasons why she felt she should override the four-year limit which normally applies and accept the complaint, as she has done. The reasons she gave are on page 19 of the document before us. The relevant part, which is of great concern, states:

“There are exceptional circumstances that justify an investigation being conducted in accordance with paragraphs 119 and 120”.


That is the paragraph which provides for the possibility of overriding the four-year limit. It continues by referring to,

“the current concern of Parliament to deal with sexual misconduct by its members … the publicity given to endemic sexual misconduct and abuse of power in many fields of work”.

The report goes on in that respect. This is of deep concern to me because the duty of the commissioner and the committee in a case like this is a single one. It is for them to do their best to establish the guilt or innocence of the accused and to set out the reasons for coming to their conclusions so that the House and the wider world can understand them. Other extraneous considerations—public policy, public opinion, current fashion and the agitations of the press—are all completely irrelevant. They should not begin to come into any of these considerations at all—and I am very worried indeed that in this case they did.

--- Later in debate ---

[Baroness Shackleton of Belgravia]

I am not against women coming forward—indeed, I encourage it—but to be balanced, the accused person must be given the right to answer fairly and be investigated. That is justice. I fear that if we do not support the amendment of the noble Lord, Lord Pannick, the noble Lord, Lord Lester, will be expelled from this House without having had the opportunity to have the accuser’s evidence forensically tested. In the practice in which I operate, which is not a criminal practice, written statements are put in the bin unless the person who wrote them goes in the witness box to stand for them and be cross-examined on them. This is a very serious allegation. We should rethink whether we are proud of the way it has been handled and whether it really is justice.

[The Senior Deputy Speaker]

My Lords, I thank noble Lords for their 18 contributions. Some of them made points that we consider absolutely valid; I think the noble Lord, Lord McNally, made that very point.

My noble friend Lord Hodgson of Astley Abbotts made the point that rules are rules. I can say definitively that the rules are the rules and that we and the commissioner adhere to them. Noble Lords will see that the first page of our code of conduct states:

“The following Code of Conduct for members of the House of Lords was adopted by resolution on 30 November 2009 and amended on 30 March 2010, 12 June 2014, 25 February 2016, 9 February 2017 and 3 April 2017”.


No one who suggested that the rules are flawed came here with any suggestions to change them. We in the sub-committee and the committee observed the rules faithfully.

A point was made about the commissioner freelancing. The commissioner went to the sub-committee and specifically asked to investigate this case. That sub-committee is chaired by an eminent judge, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The noble and learned Lord, Lord Irvine of Lairg, was on that committee. Permission was given to the commissioner, so she followed every rule of this House.

[Lord Warner]

I am sorry to interrupt my noble friend. Can he say how many cases of historical sexual abuse and harassment have been considered under these rules since they were formed?

[The Senior Deputy Speaker]

I have been the chairman for two years and this is the first case I have had; I undertake faithfully to write my noble friend on that question. That is not a problem.

My noble friend Lady Shackleton and the noble and learned Baroness, Lady Butler-Sloss, made a point about testing the evidence. The commissioner covered that point in the committee’s report, saying:

“I am not entirely sure what Lord Lester means by cross-examination … but if he means testing the evidence where there is a challenge or a good reason to do so, then the report shows that I did this, throughout the process, and where I did not, I gave my reasons”.


She refers to paragraphs 156 and 93 to 152 of her report. The evidence was tested very carefully.

The noble and learned Lord, Lord Woolf, said that the rules are not fit for purpose. Following his chairmanship, the noble and right reverend Lord, Lord Eames, looked at that point in the leader’s report and used the experience of the noble and learned Lord, Lord Woolf, so that they could take account of the problems. They did that by establishing an independent commissioner.

Other points have been made about the process being reviewed next week when the committee will meet, following the Cox report in the House of Commons. We will look at bullying and harassment. We want to ensure that the system is more accessible to complainants but there is no current suggestion to adopt a procedure involving cross-examination. If any Member wishes to put that to the committee for consideration, we are here to listen to all the evidence.

[Lord Lucas (Con)]

My Lords, in what sense is cross-examination not part of an inquisitorial system? It is perfectly possible under such a system. We are looking at precedents in the United States where a lot of students are being accused of sexual misconduct in universities and university tribunals have been taken to court for their procedures. It is quite clear that the American courts expect an inquisitorial procedure under which the fact-finder questions the evidence.

[The Senior Deputy Speaker]

We could be dancing on a pinhead here in that sense. The main issue, as outlined, is the testing of evidence. I take comfort from the fact that the sub-committee included eminent legal people such as the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Irvine of Lairg. They are as distinguished as they come. I take great comfort from the fact that of the 14 members of the Privileges and Conduct Committee last week, both the noble and learned Lords, Lord Hope and Lord Mackay of Clashfern, gave evidence. If I were looking for legal representatives, those four would always be in my first team; they would never be on the subs bench. I have every confidence in them.

[Lord Campbell-Savours (Lab)]

Does the noble Lord accept that under cross-examination, it may have been established that the noble Lord, Lord Lester, was innocent?

[The Senior Deputy Speaker]

I listened to the noble and learned Lords on that issue. They were satisfied that the evidence was tested thoroughly, which is as good as anything. I took comfort from what they said. Having listened to the points that have been made, I hope that Members will uphold the internal disciplinary procedures relating to the code agreed by this House way back in 2009. Those processes have been in place for many years; we have used them many times for the investigation of allegations. The Members who spoke in favour of the amendment of the noble Lord, Lord Pannick, have not previously criticised or sought to change those processes even though they were used to investigate other serious allegations that led to suspensions for four Members in 2009, as I mentioned in my opening speech. As other members of the committee have said, we cannot criticise the independent commissioner for her processes.

[Baroness Nicholson of Winterbourne (Con)]

My Lords, I understand that if the verdict is passed that the Motion in the name of the noble Lord, Lord Pannick, should go through, the noble Lord, Lord Lester, could not appeal to the UK courts. Could he appeal to the Strasbourg court instead or would he be denied justice everywhere?

[The Senior Deputy Speaker]

I am being told that I could give an answer but I am advised that it is not a matter for me to refer to. In his comments on 20 May 2009, the noble Lord, Lord Lester, took the issue of the European courts into consideration in looking at the case and appeals of the four Members accused of taking money from the Sunday Times. It is good to look at that.

As I mentioned, other committee members said that we cannot criticise the independent commissioner. She followed the procedures set down by this House and kept under review by the committees of this House, not least the sub-committees. I invite the House to reflect on why we have an independent commissioner. We have one to build public trust in the House as an institution and because one of the principles of natural justice is having an impartial decision-maker. The House deliberately delegated active investigation and assessment to an independent commissioner; it would be wholly wrong for the House to seek now to substitute the commissioner’s conclusions with its own.

[Lord Butler of Brockwell (CB)]

My Lords, is that not the whole purpose of this debate? We are here to reach a judgment on the commissioner’s report.

[The Senior Deputy Speaker]

We are here to listen to Members’ views, which I said I would take in. The sub-committee made its declaration. By the way, we used our judgment as a committee, because the sub-committee recommended expelling the noble Lord, Lord Lester. We modified that and made it a suspension. Those judgments were made by the sub-committee and the Privileges and Conduct Committee. We are here to listen to points of view. I shall take forward in the committee next week the comments that have been made today so that we can add to and refine our processes. That is the essence of this.

My final remark is that we must not forget the complainant in all this, as the noble Baroness, Lady Hussein-Ece, said. This is a woman who reported a series of highly distressing events that have gone largely unmentioned, other than by the noble Baroness, today. She has been criticised in some parts of the media.

[Lord Harries of Pentregarth (CB)]

Some of us have been trying to get in for two and a half hours to support the point made by the noble Baroness, Lady Hussein-Ece, but, with due respect to some noble Lords, they go on so long that it can be impossible to get in.

[The Senior Deputy Speaker]

I thank the noble and right reverend Lord. I do not know whether I agree enthusiastically with him, but I shall nod to that comment. The points made by the noble Baroness, Lady Hussein-Ece, were highly relevant in that regard. The complainant has been criticised in some parts of the media for not formally reporting what happened at the time. She did not report what happened in 2007 to this House, but she told six people of considerable standing. We should remember that, at that time, she would have had to report the incident directly to Members of this House. We had no independent commissioner or other mechanism for reporting at that time. I should also point out that it was not the commissioner who unilaterally decided that it was appropriate to investigate; she sought the permission of the sub-committee, which unanimously decided that the case should be investigated fully under our current procedures. With that, I invite the House to approve the Motion in my name and to agree to the report of the Privileges and Conduct Committee. I invite the noble Lord, Lord Pannick, to withdraw his amendment.

[Lord Pannick]

I thank the Senior Deputy Speaker. It is one of my remaining ambitions in life to get into his first 11 of lawyers.

I thank all those who have contributed to this important debate. It is striking that no one who has done so has disputed that in all other regulatory, disciplinary or employment areas in this country—in the City as well—if you are accused of a serious disciplinary offence that turns on credibility and have your reputation destroyed, you are entitled to cross-examine, or have cross-examination conducted of, the person who accuses you. It is not a question of “special pleading”—the noble Lord, Lord Warner, used that phrase—for Members of this House; I am asking for the protection accorded to everyone outside this House who faces accusations of similar conduct. It is simply unacceptable for us to apply lower standards.

Perhaps I may briefly respond to the main arguments that I understand to have been advanced. The first is that these are our rules; we are stuck with them. I have to tell noble Lords that if I were appearing in a judicial review for any public body accused of adopting an unfair procedure and I were to say to the court, “Well, those are the rules”, the judge would not for a moment tolerate such an argument. The court would say, “This is not fair”, and it would set aside the decision. In any event, the code, which is the governing instrument, at paragraph 21 requires compliance with,

“the principles of natural justice and fairness”.

There is nothing in the rules which prevents the commissioner in the exercise of her discretion allowing cross-examination in an appropriate case.