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Privileges and Conduct

Volume 720: debated on Tuesday 27 July 2010

Motion to Agree

Moved By

That the Report from the Select Committee on Mr Trevor Phillips: Allegation of Contempt (First Report, HL Paper 15) be agreed to.

My Lords, this report has been made further to the Motion agreed by the House on 25 February of this year that referred certain allegations against Mr Trevor Phillips to the Committee for Privileges, as it then was. The committee, on the advice of the noble and learned Lords, Lord Irvine of Lairg, Lord Mackay of Clashfern and Lord Scott of Foscote, concluded that Mr Phillips was not guilty of contempt of the House. I hope that the committee’s findings speak for themselves and I shall say no more about them at this point.

The committee has also made two substantive recommendations, to which I seek the agreement of your Lordships. The first is that the guidance issued to witnesses appearing before House of Lords Select Committees should in future state explicitly that any contact between witnesses and the committees should be made through the clerk or the chairman. We hope that this will provide greater clarity for witnesses. Our second recommendation is that the Procedure Committee should be invited to consider the procedure to be followed in a case where a committee intends to make personal criticisms of a named individual other than a Minister. We accept that more work is needed before any changes are made to the House’s procedure, but we felt on principle that the issue should be looked at. I beg to move.

My Lords, I was on the Joint Committee on Human Rights when these allegations were made. We were advised by our clerks that this was a clear breach of privilege. The effect of the lobbying—which there undoubtedly was—was obviously going to be minimal, because the three people whom others attempted to nobble were grown-up and intelligent enough to maintain the views that they had maintained the whole way through the discussion on Trevor Phillips’s behaviour. Admittedly, there was discussion in the committee and some people favoured a harsher report than others, but we came up with what was in effect a unanimous opinion. However, I am quite disappointed—that is the best way to put it—that this is what the Committee for Privileges found. I yield to no man in my admiration for the noble and learned Lord, Lord Irvine of Lairg. He obviously has an extremely clever legal brain, so it would be a foolhardy person who disagreed with what he said. However, at the time it seemed to us that there was a clear breach and I maintain that opinion.

I will say a few words on the judgment of the committee, because I dissent from it. Perhaps I may take the time of the House to refer to a number of documents that underline my view. Paragraph 21 of the report states:

“We therefore conclude that, however inappropriate and ill-advised, Mr Phillips’ actions did not significantly obstruct or impede the work of the JCHR”.

The judgment of the Committee for Privileges seems to have turned on the words “significantly obstruct”. That should be seen in context. The chairman of the Joint Committee, Mr Dismore, in his submission to the House of Commons Standards and Privileges Committee, stated:

“The Committee’s consideration of its draft report on the EHRC was hampered by Mr Phillips’ actions. We were unable to agree a report on 9 February. Although we did agree a second version of the draft report on 2 March ... I am in no doubt that Mr Phillips wanted either to tone down any criticisms we made of him in the draft Report or to delay the Committee’s deliberations so that we were unable to report before dissolution. Whether or not he was assisted by being familiar with the contents of the draft, he sought to achieve this aim by persuading Members he thought were ‘friends’ that the Committee’s inquiry was unbalanced and was motivated by hostility to him on the part of me or other Members. This represented a significant interference with our work which is why we looked to refer the matter to your Committee”.

The key words in that statement are:

“This represented a significant interference”.

We therefore have the chairman of the Joint Committee on Human Rights saying that, in the view of the committee, this was a significant interference; we also have the judgment of the Privileges Committee that it “did not significantly obstruct”. The matter turns on those words.

However, if we look back to an inquiry that took place in the Commons in 1994, we have some guidance on how the Privileges Committee deals with these matters. I think that it is worth explaining to the House that this matter was dealt with by the Privileges Committee in the House of Lords because the Commons went into recess and was not in a position to consider the matter fully, although it put into the public domain a number of memoranda that had been submitted to the committee for consideration for a report that it subsequently did not produce.

In the Willetts inquiry in 1994, Mr Willetts, a member of the other place, had been accused of trying to nobble the chairman of the Select Committee on Members’ Interests, Sir Geoffrey Johnson Smith. In response to a remit from the House to investigate an allegation of improper pressure brought to bear on a Select Committee, the conclusion of that inquiry was that,

“we have to consider how far the term ‘pressure’ is synonymous with ‘influence’. We recognize that, while assent to or reinforcement by one Member of an opinion held by another could be regarded as influence, something further is required, in the form of a positive and conscious [effort] to shift an existing opinion in one direction or another, for a Member’s words and actions to constitute pressure”.

I argue that there was a positive and conscious effort to shift existing opinion because the draft report of the Joint Committee on Human Rights had, in part, been leaked to Mr Phillips. My noble friend Lord Dubs says no, but perhaps I may refer him to another document, which provides us with evidence of that. It is a submission from Mr Phillips himself to the Standards and Privileges Committee, in which he states that he received a memorandum on 22 March this year. I am sorry to delay the House on this matter but it is extremely important, because it is about nobbling the members of a Select Committee prior to the publication of their report. An e-mail received by Mr Phillips from a member of staff of the Equality and Human Rights Commission dated 6 February 2010 states:

“I was talking to someone this evening”—

that is, a member of his staff is being quoted—

“who had had sight of the current draft of the JCHR report. He said the report, in its current state, was fairly weak and emphasised a few points”.

The leak of that report advises Mr Phillips of the contents that are critical of him, which is why he was seeking to influence the individual members of the committee.

All I am saying to the House is that this is an important matter. We are not going to divide on it, but I believe that the Privileges Committee could have produced a far stronger document. It has not taken into account the precedent of pressure on Select Committee members and I believe that today the House is taking the wrong decision.

My Lords, it is rare that I intervene in one of these discussions—in fact, I have never done so. However, I feel that I need to because two of our most distinguished Members seem to indicate that the Joint Committee was so wimpish that it could not stand up to being, as it were, lobbied. Who of us has not been lobbied from time to time about the issues that we have been discussing in a committee? I believe that the report before us takes a sensible view of this matter—someone had found out through a leak that they were being strongly criticised by a report, but they had absolutely no way of addressing that matter. That is the main, important recommendation and I congratulate the committee on its balanced report. It takes a sensible view. Furthermore, I say to the noble Earl, Lord Onslow, that I thought that he was a stouter man than that.

My Lords, rather surprisingly, I go along with what the noble Baroness, Lady Thornton, said. If we read between the lines, it seems clear that the committee found that there was a leak. It gave a good reason for not holding a leak inquiry, which appears at the end of paragraph 17 of the report. However, leaks are extremely serious matters and I believe that a leak inquiry should now be carried out.

My Lords, I rise rather unexpectedly, because I had not anticipated taking part in the debate. However, I rather think that I was chairman of the Commons Committee on Standards and Privileges at the time to which the noble Lord, Lord Campbell-Savours, referred. I totally take his point that these are important matters and are certainly not trivial. However, I come closer to the noble Baroness, Lady Thornton, and my noble friend Lord Skelmersdale in thinking that the House would do itself no service by disregarding the considered recommendations of a committee containing the noble and learned Lord, Lord Irvine, and my noble and learned friend Lord Mackay. I for one would not wish to participate in any overturning of such judgment.

My Lords, after an interesting debate, I am not sure that whatever I say will satisfy the noble Lord, Lord Campbell-Savours—possibly not even my noble friend Lord Onslow. However, it might be helpful if I briefly explain how the committee went about its inquiry into the allegations against Mr Phillips.

First, we waited until the Commons Committee on Standards and Privileges had completed its work. Although that committee did not publish a report, its chairman, Sir Malcolm Rifkind, wrote to me to indicate that his committee saw no basis for investigating the allegation further. That letter is on the record. The Commons committee also published extensive written evidence online, which I think is what the noble Lord, Lord Campbell-Savours, was quoting from.

As I said in my opening remarks, we then invited three former judges who sit on the Committee for Privileges and Conduct—the noble and learned Lords, Lord Irvine, Lord Mackay and Lord Scott—to consider the allegation in more detail. Their unanimous conclusion was that no contempt had been committed. The reasons are as set out in the report in detail. It was, however, clear to us that Mr Phillips’s actions were inappropriate and ill advised. He should have known better than to contact members of a Joint Committee with whom he was personally acquainted in order to persuade them to influence a committee in his favour. However, a charge of contempt is a grave one, not to be upheld lightly. In this case, there was a lot of misunderstanding and uncertainty over the rules and no clear proof that harm had been done or that the Joint Committee’s work had been seriously compromised. The noble Baroness, Lady Thornton, made the point that the members of the committee are perfectly capable of standing up for themselves.

I do not think, therefore, that it would have been appropriate in the circumstances to have done anything other than to dismiss the allegations of contempt. It might be interesting for your Lordships to know that there has not been a case of contempt in this House since 1870, when the offender was reprimanded at the Bar of the House. Clearly, it is not something that we do too often.

Before the Chairman of Committees sits down, would he clarify one point? The fact that the attempt to influence members of the committee was unsuccessful is surely not entirely relevant. The fact that the members were successful in resisting any attempt to influence them is of course important in the outcome, but if someone attempted to bribe a Member of either House but was unsuccessful, would it not still be contempt and a very serious matter? The success of members of the committee in resisting the attempt to influence them is not crucial in this matter, contrary to what the noble Baroness, Lady Thornton, said.

My Lords, I agree with the noble Baroness that it was the crucial issue in the matter. The report makes it clear that no contempt was committed.

Before the noble Lord sits down, may I press him? The attempt was successful, because the report was withdrawn and rewritten prior to the general election.

My Lords, these matters were all looked into by the Privileges Committee and the noble and learned Lords thereon. They were not looking into the content of the Joint Committee’s report as such. It would be quite wrong to suggest that the report had been changed on that account. I certainly do not endorse that suggestion.

Motion agreed.