Lord Pannick
Main Page: Lord Pannick (Crossbench - Life peer)
Viscount Hailsham (Con)
My Lords, as some noble Lords will know, last December I participated in the debate on the report on Lord Lester. Since then, I have submitted a very full memorandum to the committee chaired by the noble Lord who just introduced this Motion, so my views are available to anybody who wants them. Therefore, I am sure I will be forgiven if I speak very briefly and confine myself to but three issues.
First, the fourth question in the report, and the one left over, is: should we make the process for investigating and determining complaints against Members more, or entirely, independent of the House? My answer to that is an emphatic yes. Perhaps I might make a declaration and say that for the last nine years or so, I have been exclusively concerned as a legal practitioner as a legal adviser to the regulatory panels that regulate the conduct of doctors, nurses, midwives, social workers and healthcare professionals. Your Lordships might think that I am a bit set in my ways, but they certainly inform my conclusions.
I accept entirely that our procedures must not deter complainants from coming forward, but we must not put in place a process that is unfair to a respondent Peer or one that does not accord with the principles of natural justice. An adverse finding against a Peer is a very serious matter for that individual. Inevitably it will cause damage, possibly irreparable, to their reputation. The sanctions, expulsion or long suspension should be viewed in the same light as sentences imposed by criminal courts, or the suspension or strike-off orders imposed by the regulatory authorities.
Your Lordships will know that most regulatory authorities operate under procedures established by Parliament and supervised by the appellate jurisdiction of the courts. In summary, the processes are very similar to those that prevail in the courts and, in particular, require proper discovery of evidence, the entitlement to full legal representation and the hearing and cross-examination of all relevant witnesses. I believe that any process we create must be similar to the processes we require of all the regulatory regimes with which I am associated.
My conclusion is that the role of the commissioner should be confined to investigating the complaint, establishing whether there is a prima facie case and regulating the interlocutory procedure. The commissioner should be the prosecuting authority but not the ultimate judge of fact or the decider of sanction. The determination as to fact and the recommendation as to sanction should be matters for an independent tribunal presided over by an experienced legal practitioner. The respondent Peer should be entitled to legal representation, and that representative should be entitled to cross-examine the relevant witnesses. I do not agree with the rejection of the right of cross-examination, as set out in paragraph 45 of the report.
I turn secondly and briefly to the new conduct committee. It is essential that, from the initial hearing, there should be a proper right of appeal and I agree in substance with the provisions set out in paragraph 53 of the report. I accept that the powers of the committee should be essentially the same as those that arise in judicial review and should not, in the generality of cases, involve a rehearing of the facts. I would, however, give the committee an overarching power to quash a finding on the facts, where the interests of justice so require it. However, I disagree with the report’s recommendation on the composition of the committee. The lay element should be in the majority. All members should be voting members but the committee should be chaired by a senior legal figure, not necessarily one serving in this House.
Thirdly, I want to address briefly the role of this House. That is identified as the second question in the report, about whether this House should play a wider role. To that I answer an emphatic no, for two reasons. First, it is difficult to avoid a conflict of interest. It is thoroughly unseemly for Peers who know the respondent Peer to intervene on his or her behalf. Secondly, and differently, the committee or independent tribunal that first considered the matter will inevitably know a great deal more about the facts and the documents than any Member of this House could reasonably expect to.
Our stated objective, as set out in the guide on conduct and in the report itself, is to ensure that allegations made against Members are handled in a way that accords with the principles of natural justice and fairness. I do not believe our present procedures achieve that. My conclusion is that we should do away with the inquisitorial system presently in place and adopt a system similar to that which Parliament has imposed on all the regulatory regimes with which I am familiar. I do not recognise any reason of principle or procedure for according to Members of this House a different—I would say less fair— system of regulation than that which this Parliament has imposed by law on all professionals with whom I have worked, and within all the jurisdictions with which I am familiar. Accordingly, I hope we will look again at these procedures. I see that this is contemplated in the report introduced by the noble Lord, Lord McFall, and I welcome that fact.
Lord Pannick (CB)
My Lords, the reforms proposed by the committee, as helpfully outlined by the Senior Deputy Speaker, will be a distinct improvement on the current system. No one who participated in the debates in November and December on the conduct of Lord Lester, or who listened to those debates, could think it was a satisfactory way for the House to assess the conduct of one of its Members. I entirely agree with the comments of the noble Viscount, Lord Hailsham.
The committee is, in my view, right to recognise that there should be a new conduct committee with lay members to hear appeals from the commissioner and to vary any sanctions. My primary concern about the report is that it does not secure a sufficiently independent determination of complaints. A new conduct committee consisting of five Members of the Lords and four lay members will simply not command public confidence because it is not independent of the House. It is easy to predict what will happen if the commissioner makes a finding of a breach of the code and the new conduct committee then overturns that decision by a narrow majority, with all or most of those members who are Lords voting in favour of the relevant Peer. It is inevitable that the House will be strongly criticised and that its reputation will suffer. It will inevitably be said that the Members of the Lords are looking after one of their own. The very fact that the Members know that there would be such criticism will make it very hard for them to assess fairly the conduct of the relevant Peer and exonerate him or her if they think it right to do so.
The only system that can command public confidence and be fair, to both the complainant and the accused Peer, is a wholly independent one with appeals from the commissioner going to a panel composed exclusively of lay members with, I suggest, a retired Court of Appeal judge as the chairperson. I entirely recognise that some Members of the House will find it very difficult to give up their power in this way, but we need to do so if our complaints system is to command confidence and respect.
Paragraph 12 of the report mentions, as did the Senior Deputy Speaker, that Naomi Ellenbogen QC has been appointed to advise on bullying and harassment and is expected to report this summer. She is a much-respected figure in this field and paragraph 21 says that it would be prudent to await her report before deciding whether there is a need for greater independence on the conduct committee. I am happy to go along with that and very much hope that Ms Ellenbogen will see the force of the case for independence and report accordingly.
I will comment briefly on two other matters. The first is the role of cross-examination, mentioned by the noble Viscount, Lord Hailsham. Paragraph 45 of the report says that cross-examination is unnecessary because the commissioner,
“can undertake a highly effective and rigorous testing of the evidence in a less confrontational style”.
It is exceptionally difficult for the same person to be both inquisitor and judge. There may not be many of them, but in cases where the commissioner has to decide who is telling the truth, her difficult task—and it is difficult—would be much easier if she listened while someone else asked the penetrating questions. The committee does not appear to have considered another solution to this problem. In these cases, where the commissioner has to decide who is telling the truth, she should have power to appoint independent counsel to assist her by asking questions of both the complainant and accused Peer, not in a hostile manner but in one that tests the evidence. The process of appointing counsel to the inquiry is a familiar means of testing evidence in other contexts. It works well and some Members of this House have used it when serving as chairmen on inquiries. I hope Miss Ellenbogen will address this point.
Finally, I mention the role of lawyers, as did the noble Viscount, Lord Hailsham. I declare my interest as a practising Queen’s Counsel. I find it very disappointing that paragraph 55 of the report seeks to defend the existing prohibition on counsel being appointed by the accused Peer, or the complainant, to speak on his or her behalf before the conduct committee. We are concerned here with decisions that can end a person’s career—that can damage, sometimes destroy, reputations built up over a lifetime, not just for the accused Peer but for the complainant as well. It is rare for a Peer or complainant to be able to represent themselves effectively in such circumstances, given the inevitable emotional strain on them. The task of the committee would be assisted by having the issues presented by a trained professional, rather than by the Peer or the complainant themselves. I hope that Naomi Ellenbogen will advise the committee that the fairness and efficiency of an appeal will be promoted if those involved can appoint counsel to make submissions on their behalf.
Baroness Butler-Sloss
My Lords, at this late stage I shall be very brief—I confess of course that I am a lawyer—and say something about adversarial and inquisitorial, because there may be some misconceptions. I am delighted to hear that there will be a panel of investigators. I would expect most of them not to be lawyers, but to be able to do practical investigation. That seems to be entirely sensible. We need to differentiate between the different sorts of cases. There will be cases of harassment or bullying, which are nasty and will possibly require suspension from the House. There will occasionally be cases such as Lord Lester’s. It is in relation only to that type of case that something slightly different should take place. As the noble and learned Lord, Lord Woolf, said, it is not a good idea to have the person who is adjudicating also being the investigator. There are problems in that. I am not criticising the current commissioner; I just think that she could have done with some help.
I have a suggestion about the best thing in the very difficult case of a stark difference of evidence, where one has to resolve who is telling the truth; because only one person can be in such a—thankfully rare—case. In such a case the investigator should, in my view, be a lawyer. However, it is appropriate only in that rare case, where the reputation of the victim is important, but so is the reputation of the Peer, who is almost certainly going to be excluded from the House for ever and whose reputation will be completely destroyed. At that point, you do not want cross-examination as such, but you need a sensible, discreet member of the Bar who can ask appropriate questions, without being disagreeable about it, to try to ascertain the truth from the parties who are being asked these questions. I put it to the House that there are rare cases where the commissioner may need the help of a lawyer rather than the ordinary investigator we are talking about.
Lord Pannick
Does my noble and learned friend agree that, in her experience, many inquisitorial processes take place throughout the country, on a wide variety of subjects, where lawyers are involved and there is a degree of cross-examination by counsel to the inquiry and lawyers representing the individuals? The fact that it is inquisitorial does not mean that those protections are removed.
Baroness Butler-Sloss
I entirely agree. I have chaired commissions, committees and so on, particularly the Cleveland child abuse inquiry, where there were a great many lawyers. I am not suggesting any of that for this, but I think we need to adjust the way in which the issue is tried according to its seriousness and the likely outcome, if it goes the wrong way, for the Member of this House who will be permanently excluded.