Privileges and Conduct

Lord Pannick Excerpts

Thursday 15th November 2018 Lords Chamber

Moved by

[Lord Pannick]

To leave out “agreed to” and insert “remitted to the Committee for Privileges and Conduct because the Commissioner for Standards failed to comply with paragraph 21 of the Code of Conduct which required her to act in accordance with the principles of natural justice and fairness.”

[Lord Pannick (CB)]

My Lords, I thank the Deputy Speaker for the way in which he has introduced this difficult matter. I declare my interests. I have been a close friend of the noble Lord, Lord Lester, and we were colleagues at the Bar for almost 40 years. I assisted him during the process before the Commissioner for Standards and indeed at the hearing before the Committee for Privileges, but I was not allowed, because of the procedures of this House, to speak on his behalf either before the commissioner or before the committee.

I do not know—your Lordships cannot know either—whether the noble Lord, Lord Lester, committed the acts alleged against him. I would be very surprised if he did but I do not know. However, I know that the procedure applied by the Commissioner for Standards was manifestly unfair. If you are going to assess the credibility of competing contentions as to what occurred nearly 12 years ago, apply a very serious sanction against someone and destroy their hitherto unblemished reputation, you have to allow them, through their counsel, to cross-examine the person making the allegations, which turn on credibility. At the very least, the commissioner should appoint independent counsel to perform that cross-examination; that would also be acceptable.

Paragraph 21 of our code of conduct is very clear. I am sorry that the Senior Deputy Speaker did not mention it. It states that the commissioner,

“shall act in accordance with the principles of natural justice and fairness”.

The fact of the matter is that in every other regulatory, disciplinary or employment context in this country, if you are accused of serious misconduct where the issue turns on credibility and you face a serious sanction, you are entitled to your legal right to cross-examine the person making the allegations against you so that their credibility—and yours, because you must be cross-examined as well—can be properly assessed and determined. I find it quite astonishing that this House, which lays down the law for everybody, does not comply with these basic standards of fairness. With great respect to the Senior Deputy Speaker, the question is not about whether the commissioner is distinguished—she is—or whether she carried out this function very carefully; no doubt she did her best. It is essentially a question of principle. Can she fairly determine an issue that turns on credibility when she did not allow for any possibility of cross-examination?

The Senior Deputy Speaker relied on the guide to our code of conduct, paragraph 127 of which states, as he accurately pointed out:

“Nor do members accused of misconduct have any entitlement to cross-examine complainants”.


Of course they have no such entitlement, because fairness does not require cross-examination in all cases. In many cases, credibility is not an issue, but that paragraph cannot mean that the commissioner lacks any power or duty to allow for cross-examination if and when fairness so requires. If that paragraph so provided, it would conflict with the governing position in paragraph 21 of our code of conduct, which requires the commissioner to act in accordance with “natural justice and fairness”. In any event, even if our code were followed by the commissioner—which was not the case—the question before the House is whether the noble Lord, Lord Lester, was treated fairly and in accordance with natural justice by being denied the opportunity for cross-examination. It is very important to emphasise to the House that this is not a lawyer’s point. It is inherent in the very concept of fairness.

It is also important to emphasise to the House that the noble Lord, Lord Lester, wanted the right to cross-examine not because of some abstract principle but because of what he sees as the gaps and inconsistencies in the case against him—as to when the harassment is said to have occurred, what meetings Ms Sanghera says she was denied access to and, most fundamentally of all, between her allegations and her own conduct. Your Lordships may have seen in the report that, one week after the alleged events, she signed her book for the noble Lord, Lord Lester, in affectionate terms. I quote:

“Anthony … Thank you so much for your love and support. It has been my pleasure to meet you … Love and admiration.”


One week after the alleged events, she expressed “admiration”. Two and a half years later, she sent him another book thanking him for his support and signing it—

[Baroness Jones of Moulsecoomb (GP)]

I feel that the noble Lord is asking us to judge again this case, which is not appropriate for us, because our legal knowledge is not sufficient.

[Lord Pannick]

I emphasise to the noble Baroness and noble Lords that I am most definitely not asking the House to take sides as to who is telling the truth and who is not. I am citing these matters as briefly as I can because, in the circumstances of this case, fairness cried out for cross-examination. I am giving an example of why, in the absence of cross-examination, fairness could not be achieved. I was telling the House that, two and a half years after the alleged events, Ms Sanghera sent the noble Lord, Lord Lester, another book thanking him for his support and signing it, with “love and respect”.

A great authority on evidence, Dean Wigmore, said—and he was right—that cross-examination is,

“the greatest … engine ever invented for the discovery of truth”.

I remind your Lordships that in 1999 the report of the Joint Committee on Parliamentary Privilege, which was chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, stated at paragraph 281 that when the House deals with serious cases of contempt it is,

“essential that committees of both Houses should follow procedures providing safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies”.

The Joint Committee set out what it described as a series of “minimum requirements of fairness” for a Member accused of wrongdoing. Those minimum requirements included,

“the opportunity to examine other witnesses”.

Mention has been made by the Senior Deputy Speaker of the comments made by the noble Lord, Lord Lester, himself in the case of Lord Taylor of Blackburn, who was disciplined for dishonest expenses claims, but what is fair depends on the context. The context in the present case is an allegation of misconduct nearly 12 years ago dependent on the competing credibility of two people. In any event, what the noble Lord, Lord Lester, said in 2009 cannot be determinative of the standards of fairness.

The noble Lord, Lord Lester, put before the Committee for Privileges an independent opinion from David Perry QC, who had advised Parliament in relation to its code of practice. He said that, given the serious nature of the allegations and the time that had elapsed since the events in question, the noble Lord, Lord Lester, had been denied a basic requirement of fairness in the circumstances of this case. He also made many other criticisms which I will not deal with.

Sexual harassment and abuse of power are serious wrongs and nothing that I say is intended to diminish their gravity, but those who are accused of such offences are entitled to have their cases fairly and properly considered. The more serious the allegation and the more severe the penalty, the greater the obligation on us to act fairly. The noble Lord is facing suspension for nearly four years and his reputation has been destroyed.

--- Later in debate ---

[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.

[Lord Hodgson of Astley Abbotts]

The noble Lord is talking about a judge applying the law made a by third party. The difference here is that we are talking about us applying rules that we have made ourselves. It is a distinctly different matter. A judge is applying the law of the land; we are applying rules that we have created ourselves.

[Lord Pannick]

We are the High Court of Parliament. One cannot go to court to challenge the fairness of this procedure. This House is obliged to ask whether what has been done in this case is fair. The argument seems to be, “Well, the current rules might be unfair. We don’t accept that they are, but in the future we’ll consider doing something about them”. This is no comfort to the noble Lord, Lord Lester, and it should be no comfort to your Lordships in considering this case. He is entitled to a fair procedure.

The point was then made by the noble and learned Lords, Lord Hope and Lord Mackay of Clashfern, that these are inquisitorial, and not adversarial, proceedings, but we cannot inquire into a matter of this sort and reach a fair conclusion without a process of cross-examination for all the reasons that the noble Baroness, Lady Meacher, eloquently explained.

[Lord Falconer of Thoroton (Lab)]

Would the noble Lord not be content with the inquisitor asking the questions, as she said she did?

[Lord Pannick]

She did not conduct a cross-examination, and it is very difficult for the person making the decision to enter into the arena to do so. The experience of all distinguished inquiry chairmen, of whom there are many in the House—particularly the noble and learned Lord, Lord Woolf—is that when they are making a judgment in an inquisitorial inquiry on a question of fact which depends on credibility, they either allow the parties to cross-examine or they appoint counsel to the inquiry to conduct that process, which would also be entirely acceptable.

[Lord Mackay of Clashfern]

Is the noble Lord, Lord Pannick, suggesting that this lady, appointed by the House as a commissioner, did not have the necessary skills to probe the evidence on both sides? According to her, that is what she did and she had to form a view about it which she presented to the committee. I have no reason to suppose that she did not reach the correct conclusion.

[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.