Privileges and Conduct

Debate between Lord Pannick and Viscount Hailsham

Tuesday 30th April 2019 Lords Chamber

[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.

European Union (Withdrawal) (No. 5) Bill

Debate between Lord Pannick and Viscount Hailsham

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Pannick]

My Lords, I can sense the mood of the House, and I am grateful to all noble Lords, particularly the Chief Whip.

The noble and learned Lord has already mentioned Amendment 7, which goes with Amendment 5. It addresses a practical concern that may arise at the European Council meeting on Wednesday night. The problem is that Clause 1 envisages that, if the Prime Minister is mandated by the House of Commons to seek an extension to a specified date, and the European Council then makes a counteroffer of a different date, the Prime Minister would have no power under Clause 1 to agree to that counteroffer. She would have to say to our European partners that she is required to return to the House of Commons on Thursday to seek its approval. She would have to say that notwithstanding the fact that the European Council is not going to remain in session—they are all going to go home. There is therefore a risk that, contrary to the aims of the promoters of this Bill, the restrictions on the Prime Minister’s powers contained in this Bill may cause a no-deal exit on Friday at 11pm. Therefore, Amendment 7 makes it clear that nothing in this Bill prevents the Prime Minister seeking or agreeing on Wednesday night in Brussels an extension of the Article 50 period, provided it is not to a date earlier than 22 May.

[Viscount Hailsham]

I entirely understand the point about the Prime Minister agreeing to a proposal coming from the European Union. I am a little less certain about the desirability of enabling her to seek a date without prior parliamentary approval.

European Union (Withdrawal) Bill

Debate between Lord Pannick and Viscount Hailsham

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, there seems to be a great deal of sense in the amendment, partly because of the provisions of Clause 6, and partly because it is important that the businesses that will be trading into the European Union have ready access to all relevant documents. They will be regulated by directives which set out the principles with which they must comply. The noble Baroness is quite right to move the amendment. Unless there is some compelling reason—which cannot be cost, because that must be very small—I hope it will get a favourable reception from my noble friend.

[Lord Pannick (CB)]

My Lords, it is indeed striking that directives are not included in Schedule 5, part 1, paragraph 1(2). The reason may be that directives are given a very odd status under Clause 4(2)(b), which we debated on a previous day. Under Clause 4(2)(b), retained EU law does not include rights which arise under an EU directive when they are,

“not of a kind recognised by the European Court or any court or tribunal”,

in this country,

“in a case decided before exit day”.

We debated the complexities, the uncertainties and, as I see it, the unsatisfactory nature, of the clause. Is that the reason why directives are not included in Schedule 5, part 1? If not, what is the reason?

European Union (Withdrawal) Bill

Debate between Lord Pannick and Viscount Hailsham

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Viscount Hailsham]

That would have to get through both Houses, which would be at least some check on the process. The point I am making is not quite the point that my noble friend has interpreted. I am saying that, if the charter is to be incorporated into domestic law, it has to be the subject of parliamentary scrutiny and amendment, and that is the only basis on which the charter should be incorporated into domestic law.

I accept the noble and learned Lord’s point that a number of aspects of the charter are entirely irrelevant and are hinged on our membership of the Union. Articles 44, 42, 43 and 39 are examples of that. There are also articles in the provision of the charter that many of us would disagree with. The noble Baroness, Lady Deech, has indicated that she does not like many of them, and I happen to agree with her. I heard my noble friends Lord Howard, Lord Lamont and Lord Blencathra chuntering away, and I agree with them: there are many things in the charter with which I disagree. But I am saying that if it is to be incorporated, it should be incorporated in such a way as to enable this House to scrutinise each and every one of its provisions and amend as appropriate.

I remind the Committee that one reason many noble Lords and others wish to withdraw from the European Convention on Human Rights is that the judge-made interpretation of the text is incapable of amendment by Parliament. I wish to avoid that criticism being made of the charter if it is to be incorporated. The suggestion in my amendment to make the charter, if incorporated, subject to parliamentary scrutiny and amendment is perhaps the only example in this sorry business of being able to cherry pick, or to have your cake and eat it.

[Lord Pannick]

My Lords, may I respond to some of the objections that have been raised to the points made by the noble and learned Lord, Lord Goldsmith, with whose speech I agree entirely?

Many of the objections—those raised by the noble Lord, Lord Lamont, are typical—are to the content of the charter or to its implications. The Committee should appreciate that that is not the Government’s position. The Government’s position is not that they seek to exclude the charter because its contents or implications are objectionable. Their position is very clear indeed. If noble Lords read the debates in the House of Commons or look at the report of the Constitution Committee, they will see that the Government’s position is simply that we do not need the charter in this Bill because its contents and implications are already contained in the retained EU law that is being read across through this Bill. So many of the objections that the Committee is listening to are simply beside the point: they are not the Government’s objection to the charter. The Government’s objection to the charter—it is unnecessary because its contents are already part of retained EU law—is, I am afraid, simply unsustainable. I will not take up time on this, because the hour is late, but if any noble Lords are doubtful about it, I simply suggest they read the helpful opinion by Jason Coppel QC, in which he clearly sets out the equality and human rights position. That is the first point.

Turning to the second point, I am always reluctant to disagree with my noble friend Lady Deech, because she taught me law at Oxford, but I have to disagree with her on this occasion. Her objection, as she explained it, and I hope I do not misrepresent her, is that she is concerned that the charter will enable the courts to overturn legislation enacted by Parliament—she is nodding. But I am sure she appreciates that that is inherent in this Bill. The whole point of the Bill is to read across as retained EU law the content of existing EU law that is applicable to this country and to give it—see Clause 5—supremacy. Supremacy means that it takes priority, as in the Factortame case, over anything enacted by Parliament which is inconsistent. So the suggestion that we must oppose the charter because it gives courts that power is simply inconsistent with what the Bill does.

Turning to the third objection, my noble and learned friend Lord Brown of Eaton-under-Heywood was concerned about whether the inclusion of the charter would, in some way, give a power that expands the role of the charter further than under EU law. My simple answer to that is no, of course it does not. The charter is being read across only because it is part of existing EU law, and it comes across as retained EU law. It will not have any greater force than it already has as part of EU law.