Viscount Hailsham
Main Page: Viscount Hailsham (Conservative - 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 Stowell of Beeston (Non-Afl)
My Lords, I welcome the report. I see it as an important step forward. It is right that a new committee is established and I support that committee including lay members. Whether or not there should be more lay or independent members in due course is a topic for further consideration. I am not sure I support those noble Lords who have argued for complete independence for the disciplinary regime of this House, because it is an important responsibility for us as Members to uphold the House’s reputation by being prepared to take appropriate action when one of us does something wrong. As the noble Lord, Lord Butler, said, it would be a mistake for us to completely delegate responsibility for that to an independent body.
Paragraph 24 of the report mentions a disrepute clause. My position on this does not lend itself to the debate on investigation versus inquisition but, since the report refers to disrepute, I want to take the opportunity to highlight why I think it is important for us as a House to understand that we carry a reputational risk at the moment. If a Member’s misconduct outside this House is so serious that their continuing membership would bring the House as a whole into disrepute, currently we are powerless to act. This is compounded because, being an unelected House, we are powerless to act if a Member in such a situation does not resign. I am talking about disrepute in a way which refers to something happening outside a Member’s parliamentary responsibilities and activities—in another part of their life—but which is extremely serious and becomes public. If that person continued to be a Member of this House, it would bring the whole House into disrepute.
When I was Leader of your Lordships’ House, I spent about a year working on a disrepute clause and was assisted by several noble and learned Lords. This work was presented to the Privileges and Conduct Committee and was accepted by the committee at that time, but it never made it to the Floor of the House. It has remained in abeyance ever since. When making her argument about the need to specify what might constitute disrepute, the noble Baroness, Lady Deech, indicated, as does the report, that it is too difficult to define what would be captured by such a clause—I believe this is one of the reasons why this measure has never become part of our disciplinary actions. However, that somewhat misses the point. We should never have to define what would be caught by such a power. We need to understand that if and when something so serious occurs, we would have the power to act in the way the public expect, precisely because the public do not have the power to act themselves.
I just wanted to note the fact that there is reference to disrepute in the report and that I hope very much that when the new committee is established it will consider this as part of its overall work plan, to strengthen our disciplinary regime.
Viscount Hailsham
The noble Baroness has identified a very considerable problem. It has been addressed by the regulatory authorities, which have a concept of impairment of fitness to practise. In the case of Grant, Mrs Justice Cox gave a very clear indication of what would constitute impairment of fitness to practise. That is a model that this House might care to reflect on, to address the point that the noble Baroness has just made.
Baroness Stowell of Beeston
It would certainly be for the committee to consider how to approach this, but I make the point to the noble Viscount and the House more generally that the reason for not having a disrepute clause or the power to act if the conduct of one of us outside this House is so serious that for them to continue as a Member would bring the whole House into disrepute should not be because we have not been able to define specifically what would constitute such action. We should just have—and be able to show to the world outside that we have—that power to act in such circumstances that it is so obvious to us that that is what we should do.