House of Lords
Thursday 15 November 2018
Prayers—read by the Lord Bishop of St Albans.
Domestic Abuse: General Practitioner Charges
My Lords, the Department of Health and Social Care has put this important issue forward as part of the general practice contract negotiations for 2019-20. While the progress of those negotiations is not discussed publicly until an agreement has been reached, I can reassure the House that the Government are committed to dealing with this issue.
My Lords, survivors often need to provide evidence of abuse when applying for legal aid and for anonymous registration, and a letter from a GP is an acceptable form of evidence. GPs are able to charge survivors for this letter—in some cases over £150—and this is unacceptable. Can the Minister confirm, without question, that it is the official position of the Government to stop charges for these letters being made and that, either through the current negotiations or legislation, these fees will be banned?
I agree with the noble Lord. I feel uncomfortable with the idea of these letters being charged for. They have been identified by the Ministry of Justice and MHCLG as barriers to accessing support for victims of domestic violence. That cannot be right, and we are seeking to end that situation. GPs are independent contractors and therefore have that freedom unless it is specifically prohibited in their contracts, and that is what we are seeking.
My Lords, while supporting the concerns of the noble Lord, Lord Kennedy, perhaps I may point out that next week sees the International Day for the Elimination of Violence against Women. Will the Government celebrate the day and the end of austerity by funding more refuges and services for victims of domestic violence? This is necessary because during the recent years of austerity many refuges, which offered hundreds of safe places for women and their families, have been closed.
I can reassure the noble Baroness that we will celebrate that day. I think this Prime Minister has done more than any to clamp down on domestic violence and to support victims. That was shown in the £100 million that was set aside to support victims of domestic violence in a number of innovative ways. I can further reassure her that, as I understand it, the number of beds in refuges has increased over the past few years.
My Lords, it was good to hear the recent government announcement that they would ask the Law Commission to consider whether offences against older victims should be recognised as hate crimes, and of course the charges in this respect are important. The Times has recently shown that crimes against the over-65s increased between 2013 and 2017 by 31%; and violent and sexual crimes against them increased by a similar amount. I agree with Action on Elder Abuse that the figures are symptomatic of a failure to recognise the signs of this kind of abuse. What action are the Government taking as the Law Commission considers hate crime as a potential offence? Can the Minister give an idea of the timescale in which he expects it to come to a conclusion on this matter?
I join the noble Baroness in condemning this type of crime, and it is disturbing that violence against older victims has risen. That is precisely the reason the Government have asked the Law Commission to look at the issue and bring forward suggestions on how to give the authorities greater powers to clamp down on those who perpetrate such crimes.
I do not think that it is an issue of staffing per se, because it is not only doctors but other healthcare professionals who are able to provide letters of this kind. The evidence that has been gathered through consultation and indeed through the progress of the secure tenancies Bill is that the charges for these letters act as a barrier. That is the issue we are trying to address.
My Lords, does the Minister agree that evidence of domestic abuse is important not only in respect of the adult who is the victim but also in respect of the children? It is the children who are often the most innocent victims in these situations. Given that, GPs have an important role to play in producing evidence of the well-being of children in these households.
The noble Lord speaks with great wisdom on this subject. That is precisely why the domestic abuse Bill is looking to provide stronger sentences where a child has been involved or has witnessed this kind of abuse, and why some of the money I mentioned earlier, around £8 million this year, has been put aside to support children in these situations.
My Lords, is the Minister aware that during the time of the Labour Government, our noble and learned friend Lady Scotland of Asthal, when she was a Home Office Minister, took legislation through the House that provided for independent domestic violence advisers in courts? Those positions were abolished by the coalition Government. Will he consider reinstating them?
The noble Baroness will appreciate that this is not a matter for the Department of Health and Social Care, but it is something that I will be happy to look into. What I do know is that the draft domestic abuse Bill is looking to establish a domestic abuse commissioner. It may be that it is through that route that support of that kind may be made available.
My Lords, do we have any special reception facilities for men or women who have been abused? When I served on the United Nations Commission on the Status of Women, we had an opportunity to consider the excellent procedures in place in Brazil, a country which has taken this matter very seriously indeed. Over the years, this issue has been raised quite often, but do the police here pay any special attention to it, and do they protect those men or women who say that they have been attacked?
My noble friend is right to say that domestic abuse can affect anyone, although of course it happens predominantly to women. The police, local authorities and the third sector are there to provide support for both men and women when they are abused.
My Lords, further to the question put by the noble Baroness, Lady Greengross, I understand that it is becoming more common for some general practitioners to see older people with a similar illness in groups. Would this not be quite prejudicial to the idea of having a confidential interview with one’s GP if abuse has been threatened?
This would be for the discretion of the GP. I would be amazed if any GP would want to see someone who has come to them with a confidential matter, such as saying that they have been the victim of domestic abuse, in a group situation. That seems to be quite wrong. There is a role for group GP appointments for totally different issues, and indeed some of the emerging evidence shows that, for certain illnesses, they can be quite successful.
Productivity: Work-related Stress
My Lords, an estimated 15.4 million working days were lost last year due to work-related stress, depression or anxiety. That is 57% of the total days lost due to work-related ill health. The 2017 Stevenson/Farmer review of workplace mental health made 40 recommendations, all of which were welcomed by the Government.
I thank the Minister for that reply, but the Government’s latest skills and employment survey told us that we are working harder than ever and are under increased strain. In spite of this, productivity has stagnated. Recent research by McKinsey seems to show that less prescriptive management empowers staff to be more productive and reduces stress. What can be done to encourage this good practice? It would certainly help with the productivity puzzle. It also costs little and could relieve some of the mental health problems we hear about every day.
My Lords, the noble Lord is right to draw attention to productivity problems, which my right honourable friend the Secretary of State raised in the Industrial Strategy last year. He is also right to talk about work-related stress, which was recognised as a problem by my right honourable friend the Prime Minister in January 2017. That is why she commissioned the review from the noble Lord, Lord Stevenson, and Paul Farmer, which produced its report in October last year. The Government then responded, accepting all the recommendations. The Government will do whatever they can both as an employer, to help to reduce work-related stress, and through setting an example to others and encouraging employers in other fields. We will also take note of the noble Lord’s suggestions.
My Lords, large organisations have volunteer first-aiders. Would the Government consider having volunteer mental health first-aiders so that somebody with a mental health condition who wants signposting could go to them in the same way that somebody with a workplace injury could see someone?
My Lords, that is a very interesting suggestion. I cannot remember the precise details of all the recommendations in the Stevenson/Farmer report as to whether that was one of them, but it certainly recommended that large employers—organisations with more than 500 people—should take certain actions. The Government recommended applying that to employers with more than 250 people, an improvement on that figure. I will certainly take the noble Baroness’s suggestion on board and ensure that it is looked at.
My Lords, I do not wish to trivialise the issue but I want to bask in the reflected glory of the name Stevenson. Unfortunately, it was nothing to do with me. I guess there must be quite a lot of stress in the party opposite in the current circumstances so I send them my best wishes at this difficult time.
Does the Minister accept that work-related stress is one of the components of job quality? On page 118 of the 254-page Industrial Strategy, the Government set out a programme of work stemming from Matthew Taylor’s review, which assessed job quality and success—including the well-being of workers and employees, which is said to be fundamental. Can he say what progress has been made on that work stream?
My Lords, I am very glad that the noble Lord highlighted the fact that zero-hours contracts have a part to play in our economy. As he suggested, they are of considerable benefit to a great many people, such as students and retired people. They also benefit others. Again, if the noble Lord can be patient, he will hear more from the Government in due course.
My Lords, I fear that this is beginning to sound a like a shopping list, but another way of alleviating stress in the workplace is for employees to have the tools and the training to be able to meet the requirements of their job. Does the Minister agree that the Government’s plans for industrial and workplace training are in a mess? The apprenticeship levy is falling down and workplace training is at a level lower than it has ever been. What will the Government do to get a grip on training?
I admire the noble Lord’s ingenuity in trying to extend the Question to a great many other subjects. Stress has many causes; we understand that there is a problem with it; that is why we commissioned the review by the noble Lord, Lord Stevenson—not the noble Lord, Lord Stevenson, sitting opposite me—and Paul Farmer. It is also why the Government accepted what they suggested.
My Lords, it is very good that we have such an experienced Minister replying to this Question. Can I urge him to consider introducing counselling sessions for those experiencing work-related depression and anxiety at the moment—namely, members of the Cabinet?
My Lords, without meaning to hog the Question from the Liberal Democrat Benches, can I follow up the point made by the noble Lord, Lord Haskel: that we appear to be working considerably harder without improving productivity? What does the Minister think about the suggestion made by a commentator in the Sunday Times that every company needs to invest in making the most of the talent they have rather than endlessly employing cheap labour?
My Lords, police and crime commissioners are directly elected to set the policing priorities for their local areas and hold their chief constable to account. They must also have regard to national policing priorities and the strategic policing requirement. Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services periodically reports on police effectiveness. In its most recent effectiveness inspection report, the majority of forces were graded good.
While I am grateful to the Minister, I wonder what she made of the comments of the chair of the National Police Chiefs’ Council, Sara Thornton, in calling on police forces to refocus their priorities on what she described as “core policing”. Does the Minister accept that that highlights the appalling state that we have reached? Since 2010, there has been a 15% real-term, full-time equivalent reduction in the number of her police officers. Many crimes now go unrecorded and undealt with. The figures since 2015 show that there has been a 26% reduction in the number of charges or summons brought for recorded crime, resulting in 153,000 fewer criminals being brought to justice. What is the Government’s response to the appalling state that we have reached?
My Lords, I think that I have stood at this Dispatch Box before and said that it is up to local police forces to set priorities for their local areas, because they will differ from area to area. It is important to note—I have said this before as well—that both the Home Secretary and the Policing Minister recognise the increasing calls on police time and the different demands facing them, particularly in light of events in the past year. There is an additional point about how the police operate. It will not be any surprise to the noble Lord that some police forces are far more effective than others, and it is important to think of ways in which they could collaborate, make better use of technology and be more efficient as time goes on.
My Lords, in the current scenario in which there is significant rationing of policing services because of central government cuts to police budgets, it is no longer acceptable for the Government, and the Home Office in particular, to wash their hands of the consequences. When will the Home Office provide the leadership needed and tell the police service what it should stop doing, because it cannot do everything that the public want with the resources it has been given?
The Home Office has no intention of telling the police what they should stop doing because, as I said to the noble Lord, Lord Hunt, there will be different priorities in different areas. It is up to local police forces to decide what those are. As for the other acknowledgement by the Home Office, which is that the police are facing new demands and have faced increasing calls upon their time over the last year or so, both the Policing Minister and the Home Secretary fully recognise this and are working with the Treasury to get a better settlement.
I both agree and disagree with my noble friend: numbers in and of themselves do not lead directly to effectiveness. However, where those numbers are stretched to the point that it impacts on effectiveness, both the Home Secretary and the Policing Minister have absolutely recognised this. There is not necessarily a direct correlation between the two—of course, the most effective police force, Durham, is also the most efficient.
My Lords, safer neighbourhood teams certainly provide reassurance to local people, and if local forces feel there should be more numbers in the safer neighbourhood teams, then that is what they should invest in. I certainly recognise that safer neighbourhood teams provide reassurance at a local level.
My Lords, as the Minister knows, I think there are two axes that the Government might follow for the future. One is that the police genuinely need at times to be more effective—just having fewer resources is not a good reason to say that they always need more resources; they have to be more effective at times with the resources they have. I have always felt that, both in the job as well as outside now. However, there is clearly a resourcing issue, and I repeat a constructive suggestion that I ask the Minister to consider. With the transformation fund for the police rising to £350 million over the next two years, which by my estimation would provide 7,000 police officers, it is a foolish endeavour when all it is for is to cover for the fact that there will not be regional police forces. It is not transforming anything; it is taking money from the police at the very time when I would argue that those 7,000 would help to fill the 20,000 gap that has developed over the last seven years.
I start by thanking the noble Lord for what I found to be an extremely helpful discussion yesterday, particularly around knife crime, and for all the incredible work he did as commissioner. He is absolutely right, and I have alluded to it in my answers, that there needs to be more effectiveness within police forces. I take his point about fewer police forces larger in number, but I think that the transformation fund is doing some very good work and is actually incentivising police forces to be more efficient.
Police: Serious and Violent Crime
My Lords, the serious violence strategy sets out our response to tackling serious violence and it includes an ambitious programme of 61 commitments to take action on this issue. We have already delivered on our commitment to establish a new national county lines co-ordination centre and to improve police capabilities to tackle this issue, and we have provided £1.4 million to support a new national police capability to tackle gang-related activity on social media.
My Lords, I thank the Minister for her reply. The early intervention youth fund is obviously a good idea and I welcome the support that the Government have given to Metropolitan Police forces—by goodness, they need the funding. I know that the Minister has been a supporter of Leicester’s projects to fight serious and violent crime in the past, but how can the Home Office justify giving no funding at all to Leicester, a city which has seen an increase of 12.5% since 2015—more than double the average around the country—alongside massive child poverty, child crime and youth crime? Further, how can the Home Office justify giving nothing to Nottinghamshire, Derbyshire or Leicestershire, by far the three largest police force areas in the East Midlands, each of which has a city conurbation and whose population amounts to over 3 million people? Why has the East Midlands been treated so much worse than any other part of England and Wales?
I first pay tribute to the noble Lord as Parliament’s only PCC. He is absolutely right that I support the work that Leicester does. I have been to see the work that he has done as PCC, particularly some of the multiagency work across services to improve the lives of people in Leicestershire. There were 111 bids for the early intervention youth fund, so it was a very competitive process indeed. As he has let me know that Leicester was unsuccessful, I would like to sit down and talk to him, perhaps about the youth endowment fund that the Home Secretary has announced and what might be done there. This is a metropolitan problem, as well as everywhere else.
My Lords, as well as better and more effective policing, we need a long-term, consistent grass-roots focus on this problem, working with not just the statutory authorities but the voluntary sector. For example, the pan-London churches serious violence summit was hosted by Southwark Cathedral earlier this week. Will the Minister support and resource such initiatives where the grass roots are trying to address the roots of these problems?
I totally agree that some grass-roots interventions are the most critical and beneficial to local areas. Not only do we appreciate the work that people such as the right reverend Prelate do, but we are keen to carry on supporting it. He is absolutely right that to achieve any long-term change in local areas we have to work with local people, local groups and local charities.
This is the second Question on policing today and it is the Home Office that has a responsibility for assessing how much funding police forces need. In the light of the 11% to 25% range—in real percentage terms—in funding reductions experienced by police forces between 2010-11 and 2018-19, rising violent crime, fewer arrests, high numbers of crimes not being investigated, less neighbourhood policing, fewer police officers and declining public satisfaction, is it still the Government’s assessment that police forces have sufficient funding in the current financial year to meet the legitimate demand for police services? Is the answer yes or no?
The Government’s assessment at this point in time—I refer again to my right honourable friend the Home Secretary and my honourable friend the Policing Minister—is that the police have had huge increases in demand. The pattern of crime is changing, as the noble Lord pointed out. Knife crime is a particular issue in London and county lines are spreading the problem across forces. I know that the Home Secretary and the Policing Minister recognise this and are looking to work on the funding picture.
My Lords, public health approaches such as those mentioned earlier can take a decade to produce significant results and meanwhile, young people are dying. Effective, targeted stop and search based on community intelligence requires a significant investment in community policing to build trust and confidence in the police and restore the flow of information about who the knife carriers are, so that the knives can be taken off the streets. When will the Government make such an investment? This is a clear example of where more resources could save lives.
I acknowledge that a public health approach is not a quick fix, but in Scotland, where there has been a public health approach for some time, it has been incredibly effective. I know that officials have been talking with the Scottish violence reduction unit and sharing its experience and insight into just how effective a public health approach can be.
My Lords, it is clear that there are several noble Lords competing for a place. It is difficult to make a judgment, but I think we should hear from the Green Party.
My Lords, in conversation with two ex-Met officers recently, they told me that good policing can reduce drug-related crime, which is obviously serious for young people, but it can never affect the scale of the problem simply because drug criminals keep being replaced. So is it time for the Government to regulate illegal drugs and take the business out of the hands of criminals?
My Lords, the Government have no plans to legalise drugs. The noble Baroness is right that good policing can reduce drug crime and all the effects that we are seeing from drug-related crime now. She is right, but we are not intending to legalise drugs.
Business of the House
Timing of Debates
My Lords, in a few moments I will repeat the Prime Minister’s Statement on the draft withdrawal agreement. Given the significance of its content, I recognise that the House will want more time to consider it than the usual 40 minutes, which is why my noble friend the Chief Whip has rearranged business on Tuesday next week to allow a debate of up to four hours. That will give noble Lords more time to consider the documents that have been made available. A speakers’ list has been opened. I beg to move.
My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“With permission, I would like to update the House on our negotiations to leave the European Union. First, I want to pay tribute to my right honourable friends the Members for Esher and Walton and for Tatton. Delivering Brexit involves difficult choices for all of us. We do not agree on all of those choices but I respect their views and thank them sincerely for all that they have done.
Yesterday we agreed the provisional terms of our exit from the European Union, set out in the draft withdrawal agreement. We also agreed the broad terms of our future relationship in an outline political declaration. President Juncker has now written to the President of the European Council to recommend that,
‘decisive progress has been made in the negotiations’,
and a special European Council will be called for Sunday 25 November. This puts us close to a Brexit deal.
What we agreed yesterday was not the final deal. It is a draft treaty that means we will leave the EU in a smooth and orderly way on 29 March 2019 and which sets the framework for a future relationship that delivers in our national interest.
It takes back control of our borders, laws and money. It protects jobs, security and the integrity of the United Kingdom, and it delivers in ways that many said could simply not be done. We were told that we had a binary choice between the model of Norway and the model of Canada—that we could not have a bespoke deal. But the outline political declaration sets out an arrangement that is better for our country than both of these, a more ambitious free trade agreement than the EU has with any other country. We were told that we would be treated like any other third country on security co-operation, but the outline political declaration sets out a breadth and depth of co-operation beyond anything that the EU has agreed with any other country.
Let me take the House through the details. First, on the withdrawal agreement, the full legal text has now been agreed in principle. It sets out the terms on which the UK will leave the EU in 134 days’ time, on 29 March 2019. We have secured the rights of the more than 3 million EU citizens living in the UK, and around 1 million UK nationals living in the EU. We have agreed a time-limited implementation period that ensures that businesses have to plan for only one set of changes. We have agreed protocols to ensure that Gibraltar and the sovereign base areas are covered by the withdrawal agreement. And we have agreed a fair financial settlement, far lower than the figures that many mentioned at the start of this process.
Since the start of this process, I have been committed to ensuring that our exit from the EU deals with the issue of the border between Northern Ireland and Ireland. I believe this issue can best be solved through our future relationship with the EU, but the withdrawal agreement sets out an insurance policy should that new relationship not be ready in time at the end of the implementation period. I do not pretend that this has been a comfortable process, or that either we or the EU are entirely happy with all the arrangements that have been included within it. Of course that is the case; this is an arrangement that we have both said we never want to have to use. While some people might pretend otherwise, there is no deal that delivers the Brexit that the British people voted for that does not involve this insurance policy—not Canada-plus-plus-plus, not “Norway for now”, not our own White Paper— and the EU will not negotiate any future partnership without it.
As the House knows, the original proposal from the EU was not acceptable as it would have meant creating a customs border down the Irish Sea and breaking up the integrity of our United Kingdom, so last month I set out for the House the four steps that we needed to take. This is what we have now done and it has seen the EU make a number of concessions towards our position. First, the EU proposal for a Northern Ireland-only customs solution has been dropped and replaced by a new UK-wide temporary customs arrangement that protects the integrity of our precious union.
Secondly, we have created an option for a single time-limited extension of the implementation period as an alternative to bringing in the backstop. As I have said many times, I do not want to extend the implementation period and I do not believe we will need to do so. This is about an insurance policy. However, if it happens that at the end of 2020 our future relationship is not quite ready, the UK will be able to make a choice between the UK-wide temporary customs arrangement and a short extension of the implementation period.
Thirdly, the withdrawal agreement commits both parties to use best endeavours to ensure that this insurance policy is never used. In the unlikely event that it is needed, if we choose the backstop then the withdrawal agreement is explicit that it is temporary and that the Article 50 legal base cannot provide for a permanent relationship. There is also a mechanism by which the backstop can be terminated. Finally, we have ensured full continued access for Northern Ireland’s businesses to the whole of the UK internal market.
The Brexit talks are about acting in the national interest, and that means making what I believe to be the right choices, not the easy ones. I know there are some who have said I should simply rip up the UK’s commitment to a backstop, but that would have been an entirely irresponsible course of action. It would have meant reneging on a promise made to the people of Northern Ireland during the referendum campaign and afterwards that under no circumstances would Brexit lead to a return to the borders of the past, and it would have made it impossible to deliver a withdrawal agreement. As Prime Minister of the United Kingdom, I have a responsibility to people in every part of our country and I intend to honour that promise.
By resolving this issue, we are now able to move on to finalising the details of an ambitious future partnership. The outline political declaration we have agreed sets out the basis for these negotiations, and we will negotiate intensively ahead of the European Council to turn this into a full future framework. The declaration will end free movement once and for all. Instead, we will have our own new skills-based immigration system based not on the country that people come from but on what they can contribute to the UK. The declaration agrees the creation of a free trade area for goods with zero tariffs, no fees, charges or quantitative restrictions across all goods sectors. No other major advanced economy has such an arrangement with the EU. At the same time, we will be free to strike new trade deals with other partners around the world.
We have also reached common ground on a close relationship on services and investment, including financial services, which goes well beyond WTO commitments. The declaration ensures that we will be leaving the common agricultural policy and the common fisheries policy, so we will decide how best to sustain and support our farms and environment and the UK will become an independent coastal state once again.
We have also reached agreement on key elements of our future security partnership to keep our people safe. This includes swift and effective extradition arrangements, as well as arrangements for effective data exchange on passenger name record data, DNA, fingerprints and vehicle registration data, and we have agreed a close and flexible partnership on foreign security and defence policy.
When I first became Prime Minister in 2016, there was no ready-made blueprint for Brexit. Many people said that it simply could not be done. I have never accepted that. I have been committed day and night to delivering on the result of the referendum and ensuring that the UK leaves the EU absolutely and on time. But I also said at the very start that withdrawing from EU membership after 40 years and establishing a wholly new relationship that will endure for decades to come would be complex and require hard work. I know that it has been a frustrating process. It has forced us to confront some very difficult issues. But a good Brexit, a Brexit which is in the national interest, is possible. We have persevered and made a decisive breakthrough. Once a final deal is agreed, I will bring it to Parliament and ask MPs to consider the national interest and give it their backing. Voting against a deal would take us all back to square one. It would mean more uncertainty, more division and a failure to deliver on the decision of the British people that we should leave the EU. If we get behind a deal, we can bring our country back together and seize the opportunities that lie ahead.
The British people want us to get this done and to get on with addressing the other issues that they care about: creating more good jobs in every part of the UK and doing more to help families with the cost of living, helping our NHS to provide first-class care and our schools to give every child a great start in life, and focusing every ounce of our energy on building a brighter future for our country.
The choice is clear. We can choose to leave with no deal, we can risk no Brexit at all or we can choose to unite and support the best deal that can be negotiated: this deal, a deal that ends free movement, takes back control of our borders, laws and money, delivers a free trade area for goods with zero tariffs, leaves the common agricultural policy and the common fisheries policy, delivers an independent foreign and defence policy while retaining continued security co-operation to keep our people safe, maintains shared commitment to high standards, protects jobs, honours the integrity of our United Kingdom and delivers the Brexit that the British people voted for.
I choose to deliver for the British people. I choose to do what is in the national interest, and I commend this Statement to the House”.
My Lords, I am grateful to the noble Baroness the Leader of the House for repeating the Statement today, although I have to say that I did not detect any great enthusiasm there. I am grateful for her statement at the beginning about timing. Last night, the usual channels agreed the normal arrangements for a Statement, with Back-Bench contributions for 20 minutes today and a more substantive debate of three or four hours on Tuesday, when noble Lords will have had the opportunity to read and consider the detail of the deal and the documents. However, with such significant developments this morning—four resignations so far from the Government, including the Brexit Secretary—it is clear that there is a crisis at the very heart of government. I am disappointed that the Government would not accede to our request for extra Back-Bench time today—I think that was wrong. However, we welcome a longer four-hour debate next week, when we can consider the deal in greater detail. Given the importance of the issue, and because that debate is instead of time today, will the noble Baroness the Leader confirm that she will lead the response next Tuesday?
As the Government descend further into chaos, one thing has remained consistent: the Prime Minister’s approach of living for the moment—getting through today, and worrying about tomorrow later. That has not served her or the country well. But we should not forget that this situation is not entirely of this Prime Minister’s making. The entire Brexit process has been about the internal politics of the Conservative Party. It cost David Cameron and George Osborne their jobs—although the latter has done fairly well for himself since—and it could be about to cost the Prime Minister hers as well.
Last night, outside Downing Street, the Prime Minister claimed that the withdrawal agreement and the outline political declaration had been agreed by “a collective decision of the Cabinet”, and yet this morning, so far, two Cabinet Members have resigned—I do not know whether there is an update on the figure yet. She has failed to unite her Cabinet again. She has failed to unite her party, with MPs reportedly rushing to submit letters to the chairman of the 1922 Committee. Watching the Statement in the other place, we have seen that she is failing to unite Parliament, where there is seemingly no majority for any course of action, other than opposing no deal.
So let us be clear about what is most important: the Prime Minister is failing the people of our country. Families, communities, businesses and workers will not be able to understand why the Conservative Party is behaving in this way, putting the economic well-being of the country behind petty infighting and personal ambition. As Frances O’Grady, the general secretary of the TUC, said this morning, we need Parliament and the country to come together and find a real alternative to this agreement—a deal that the Prime Minister’s former adviser has labelled a “capitulation”.
Those who have welcomed the deal have either said it is “the best we can get”—faint praise indeed—or, as the CBI made clear, support the very measures that the Brexiteers have opposed: a long-term transition and frictionless trade. The draft agreement and political declaration published last night are exactly what we expected: vague promises of a future trade deal, but no clear road map as to how, or when, this will be achieved.
So, what has our sovereign Parliament been offered? The documents contain no commitment to a permanent customs union, despite the support of business and the trade unions; no detail on our future relationship with the single market, despite the EU being our biggest single trade partner; and no clarity regarding the terms on which the UK will continue to participate in EU agencies and internal security systems.
Your Lordships’ House worked hard to secure a meaningful vote for the other place, but the Government are telling parliamentarians that they must decide between this bad deal or no deal at all. It is a Hobson’s choice—that is, no choice. As many predicted, last night’s Cabinet marathon meeting has become a disappointing sequel to July’s Chequers summit. An agreement that has been toiled over for many months has yet again unravelled overnight.
On social media, I am known as @Lady Basildon. It is not just about my former constituency and my home, it is after a character in an Oscar Wilde play. As I watched the news of resignations unfold, a Wildean phrase came to mind: to lose one Brexit Secretary may be regarded as a misfortune, to lose two looks like carelessness. We now understand why the Prime Minister was not prepared to allow a vote in Cabinet. She could not because she did not have the support of her colleagues. She must have known how fragile the position was when she made her statement last night.
I have little time for David Davis and Boris Johnson. They failed in Cabinet to convince their colleagues of their so-called vision for Brexit or to come up with any viable alternative. They now stand back and attack the Prime Minister from the sidelines. Dominic Raab has criticised the deal but, again, offers no credible alternative. While many in the Cabinet, including, apparently, the noble Baroness the Leader of the House, voiced their concerns about the draft agreement last night, no alternative was offered at the meeting. It remains unclear exactly what Brexiteers want, other than to lead this great country off a cliff edge in a few short months’ time.
The situation will undoubtedly evolve in the coming hours and days. Noble Lords will use the expertise of this House to track developments. We will have our debate on Tuesday, but today, it would be helpful if your Lordships’ House were left in no doubt about the noble Baroness’s position. Does the Leader of the House give the Prime Minister and the draft withdrawal agreement her full support?
My Lords, I commiserate with the noble Baroness who had to repeat this Statement, because we know that she does not agree with it. It appears that she was one of 10 Cabinet Ministers who expressed severe reservations about the agreement. Will she explain her reservations in her reply? I think that the House would like to know.
There is a lot of real and mock surprise and indignation about the contents of the withdrawal agreement. Yet how could anybody reasonably expect it to be materially different from what has emerged? Once you accept a frictionless border in Northern Ireland, provisions such as those now in the agreement become inevitable. That was recognised by the Government in the agreement they reached with the EU last December and, incidentally, which they have spent the last 10 months denying. They have now reaffirmed that December commitment.
If the outcome on the transitional period and the backstop are predictable, I am genuinely shocked at the outline of the political declaration. In some ways, this is a much more important document because it covers our long-term relationship with the EU, not just the position during the transitional phase. I had expected the document to be layered with fudge, but I could not imagine that it would be so vague and unspecific—a mere seven pages.
It is vastly less detailed than the Chequers agreement, which listed some 68 programmes or bodies by name of which the UK wished to remain a member post Brexit. This document mentions hardly any. I believe that we are to get a somewhat extended version next week but, based on the seven pages we have before us today, it is unlikely to answer any of the difficult issues which remain. Fisheries and the European arrest warrant are but two of the myriad tricky issues that are clearly nowhere near being resolved. I cannot believe that the country would accept this pig-in-a-poke Brexit.
However, it is clear that we are not going to get to the point where these things matter, because the agreement document bears all the hallmarks of Monty Python’s dead parrot. It is bereft of life. In her statement last night, and again this morning, the Prime Minister admitted for the first time that there are three possible outcomes to the Brexit process. We can accept her deal, we can crash out without a deal, or we can remain. The noble Baroness has said many times that remain was not an option. The noble Lord, Lord Callanan, has probably said it hundreds of times.
Or thousands, I stand corrected. That was never true. At least the Prime Minister now accepts reality. I am not by nature an avid reader of the Daily Express, but I caught its front page today and I agree with its headline: “It’s a deal—or no Brexit”. I agree. And given that it is now abundantly clear that the current deal has zero chance of passing through the Commons, and we know of course that the Commons would never vote for a ruinous no-deal outcome, remain is now the only viable option. This will of course require a referendum to get the endorsement of the people.
The Government are spending hundreds of millions of pounds preparing for a no-deal outcome, which they know will not happen. Will they now spend the extremely modest amount needed to prepare for a referendum, to be held next spring, which will put the Government’s deal to the people with an option to reject it and remain in the EU? Given that we have been told from the Dispatch Box umpteen times that a prudent Government prepare for all possible contingencies, and that they now accept that this is a possibility, would a failure to do so now not be a dereliction of duty on the Government’s part?
First, I am very happy to tell the House that I fully support the Prime Minister and I back this deal. I would not be standing here if I did not—and I am very grateful that everyone seems so happy to see me.
The noble Lord and the noble Baroness asked about the outline political declaration. Negotiations will now continue to finalise the full political declaration, focusing on adding detail, defining further what balance of rights and obligations should apply in the context of trading goods and identifying which additional operational capabilities should be prioritised for consideration in the context of internal security. We are determined to conclude a full political declaration by the end of November, bringing the Article 50 negotiations to a close. Once agreed, we will bring that deal to Parliament. We have agreed, as the outline document shows, the scope of a future relationship, signalling the ambition on both sides. We have agreed to the creation of a free trade area for goods, combining deep regulatory and customs co-operation with zero tariffs and no fees, charges or quantitative restrictions across all goods sectors—the first such agreement between an advanced economy and the EU. Common ground has been reached on our intention to have a close relationship on services and investment, including financial services; on the desire for wide-ranging sectoral co-operation, including on transport and energy; and on fisheries, recognising that the UK will be an independent coastal state.
The noble Lord asked about the European arrest warrant. He is correct that it is still under negotiation, but the EU and UK have agreed to swift and effective arrangements enabling the UK and member states to extradite suspected and convicted persons efficiently and expeditiously. Both the UK and EU recognise the continued importance of close and effective operational co-operation and recognise the risks of reverting to the Council of Europe conventions. I am afraid to say to the noble Lord that we will not be holding a second referendum.
My Lords, can my noble friend assist me? The deal that has been agreed involves spending £39 billion in return for having less say over employment policies, agricultural policies, environment and taxation. It has resulted in headlines across Europe—the most dramatic perhaps being in Ireland:
“Victory in Dublin, chaos in London”—
and the humiliation of our country. How can it be presented as being in the national interest to have brought about such a circumstance?
I am afraid that I do not agree with my noble friend’s assessment. We have agreed the principles of the UK’s smooth and orderly exit from the EU, as set out in the withdrawal agreement, and agreed the broad terms of our future relationship. We are delivering on the result of the referendum; we will be leaving the EU; and, going forward, we will be developing a strong partnership with the EU that will last for decades to come.
My Lords, in the choice between democratic and material values in 2016, the people of this country voted by a clear majority to reclaim democratically accountable self-government. Is it not now incumbent on those who speak and vote on their behalf in Parliament to do likewise and to reject this deal, which fails to allow us the governmental autonomy that the people of our country ought to have?
Perhaps the Minister can tell me what is meant by the letter from Mr Raab, which said that he could not support the declaration because,
“the regulatory regime proposed for Northern Ireland presents a very real threat to the integrity of the United Kingdom”,
whereas the Statement from the Prime Minister says that,
“the EU proposal for a Northern Ireland-only customs solution has been dropped and replaced by a new UK-wide temporary customs arrangement”.
Which is the situation?
The EU proposal for a Northern Ireland-only customs solution has indeed been dropped and replaced by a UK-wide temporary customs arrangement which protects the integrity of the UK. However, there are regulatory elements necessary to avoid a hard border that will apply to Northern Ireland only, including product standards on industrial goods and agricultural products, as well as regulations strictly necessary to maintain the single electricity market on the island of Ireland. There are already some regulatory differences between Northern Ireland and Great Britain.
My Lords, the Statement says that,
“the broad terms of our future relationship”,
have been agreed in the outline political declaration. How can the Minister justify that assertion when that very short outline is nothing more than a shopping list? There are hardly any verbs in it. For instance, on fisheries, which my noble friend mentioned, it talks about the aim of the,
“establishment of a new fisheries agreement on, inter alia, access to waters and quota shares”.
That tells us nothing about the detail, which is a crucial issue. Can the Minister explain how on earth we are going to get from this to something more substantive in the next week or so? What is the process? At the moment there is no flesh on the bones.
My Lords, quite frankly we could do with more time. If the 2016 vote was about anything, it was about taking back control—that was the slogan and that was what the vote was about. This deal leaves us with less control, less power and less influence in Europe and the wider world for an indefinite and prolonged period. As the noble Lord, Lord Forsyth, pointed out, as regards our domestic regulations and laws it leaves us with no voice, no vote and no veto. How can the Government possibly contemplate trying to take this through Parliament when it is the absolute opposite of what the people voted for, rather than taking it back to the people and letting them decide?
As I have said, having agreed the withdrawal agreement, we will now be able to talk about moving on to our future relationship, which will bring back exactly the kinds of powers and develop exactly the kind of relationship that the noble Lord is talking about. The withdrawal treaty is about leaving the EU; we can now look forward, having agreed that, to an excellent future relationship together.
My Lords, paragraph 4 of Article 129 of the withdrawal agreement makes the future arrangements for this country crystal clear. It says that,
“during the transition period, the United Kingdom may negotiate, sign and ratify international agreements entered into in its own capacity”.
That makes it very clear where the future lies, and perhaps contradicts what was said earlier. As the Labour Opposition Front Bench here in the Lords is so vastly superior to the Labour Opposition Front Bench in the other place, does my noble friend think that it might, on the day, support the withdrawal agreement or at least abstain?
My noble friend is absolutely right that, under the terms of the withdrawal agreement, the UK will be free to negotiate, sign and ratify FTAs during the implementation period and to bring them into force from January 2021. I have no doubt that we will have many useful discussions in this House about the future relationship with the EU, and I look forward to them.
My Lords, is the noble Baroness aware that the Governments of Wales and Scotland have, as a post-Brexit objective, an ongoing involvement in the EU single market? In view of the fact that Northern Ireland has been accorded such a facility, will she confirm that it is equally negotiable for Wales and Scotland, or is Northern Ireland being treated differently?
The Minister lays great stress on what might be summarised as “There is no alternative”—a phrase that we have heard somewhere before. This slogan is patently inaccurate. I know that the Minister would like it to be the case, but is she not obliged to consider alternatives as they are presented?
The Prime Minister, supported by the Cabinet, has brought forward this deal, which has been negotiated with the EU, and it is the deal on the table. There will be a Council meeting later this month for both parties to agree it, and it will then be put to Parliament, which will, I hope, support it.
My Lords, I applaud the efforts of the Prime Minister in getting us this far, but I fear that my misgivings about what would happen in this process have been proven all too true—namely, the political declaration is meaningless waffle and, worse still, it is laced with the cyanide of the backstop. I understand what my noble friend says about us wishing to get more clarity in this political declaration, so maybe she can now tell the House what it means when it says that the future relationship will,
“build on the single customs territory”?
What does that mean? Does it mean that we will remain in some form of customs union with the European Union?
My Lords, did the Minister note the poll that took place on Tuesday—the biggest poll carried out since the referendum, consulting some 25,000 people—showing strong and growing support for letting the people have the final say, including increasing support in marginal Conservative seats and support among Labour members by a margin of no less than 59% to 41%? In the light of this, if the Government are concerned to listen to the voice of the people, is it not right that in the immediate future the alternative to no deal, which is where we are heading, is to let the people have the final say?
I am afraid to say to the noble Lord that we have heard from the people. The people voted to leave the European Union. We are coming forward to a deal which will deliver that, and we will work on a bright relationship with the EU going forward.
Yes, I do believe it is credible and achievable. It is something the Prime Minister has been focused on. She is delivering Brexit. We have a deal. We will bring that deal to Parliament. We hope Parliament will support it, and we will bring the country back together in a strong relationship with the EU going forward.
My Lords, during the debate, much was said about our precious union. Does the Minister agree that, in fact, the precious union will be destroyed by this deal if it goes through—although that seems unlikely. Surely Northern Ireland has now been pushed on to a ledge and into no man’s land. This is not an acceptable way to protect the precious union.
With the greatest respect, I am afraid I disagree with the noble Lord. Protecting the union and ensuring that we uphold the Good Friday agreement has been central to much of the negotiations, and the Prime Minister has been absolutely clear about that. That is delivered by the fact that we have got rid of the Northern Ireland backstop, and we have a new, UK-wide temporary customs arrangement which does protect the integrity of our union.
My Lords, in the referendum campaign the most prominent leader of the Brexit side, Mr Boris Johnson, famously said that we can have our cake and eat it too. Another prominent leader, Michael Gove, said during that campaign that, the day we leave, all the cards will be in our hands. In the light of events, does the Minister feel the British public were given honest and responsible advice on that occasion?
My Lords, the Minister’s Statement said that we are going to re-establish an independent foreign policy and, at the same time, close and continuous security and foreign policy co-operation with the members of the EU. How do we reconcile that? Will we be allowed to say no whenever we feel like it but the others will be compelled to collaborate with us, or are we actually talking about sharing sovereignty and security despite the rhetoric of independence?
As the outline political declaration shows, we have reached consensus on key elements of our future internal security partnership—as I mentioned, on extradition, data exchange, fingerprints, DNA, vehicle records and passenger name records. On foreign, security and defence policy, we have agreed arrangements for consultation and co-operation on sanctions, participation in missions and operations, defence capability development and intelligence exchanges. As I said, now that we have agreed the withdrawal agreement, we will be able to get into the detail of the future relationship. Both sides are very clear that security is a key area in which we want to continue to have a very strong partnership.
My Lords, the Minister has confirmed that, as of 29 March next year, the United Kingdom will leave the common agricultural and fisheries policies. As it stands today, there is a complete vacuum on what the policies of this country will be for agriculture and fisheries. Negative instruments are being proposed, and the Agriculture Bill is completely policy free. What timetable do the Minister and the Cabinet propose for putting before this House the five or six remaining Bills and the thousands of statutory instruments that have to be adopted before we leave?
As my noble friend rightly says, we have an Agriculture Bill; a fisheries Bill will come soon. Legislation will continue to be put forward in the House, and we now move towards talking about our future partnership. But we will now also have the capability to decide our own agriculture and fisheries policies as we leave the EU.
My Lords, I urge the Minister not to repeat the fiction that it is either this deal—almost certainly dead in the water—or no deal, which would be disastrous. Parliament has the power, the opportunity and, I would submit, the duty to take back control of this whole disastrous saga, including the option of a people’s vote giving the people a final say on whether they want to remain in the European Union. All the alternatives before us at present are far inferior to that.
I have been quite clear that we will not be having a second referendum. We have had a people’s vote, and we are now delivering on that. However, the noble Lord is absolutely right that the withdrawal agreement and implementation treaty will be brought forward to the House and there will be opportunity for both the House of Commons and this House to scrutinise it and discuss it. It will be for Parliament to pass it.
My Lords, the noble Baroness will be aware that the question of immigration was a major factor in the referendum. Can she explain why these documents, apart from dealing with the rights of EU citizens in the UK and vice versa, are virtually silent on this important issue?
My Lords, there is consensus across the House that this deal will not get a majority in the other place. What is the Government’s plan B? As we see it, a no-deal scenario happens automatically, unless the Government and Parliament decide to stay in the EU until a deal can be reached or decide to organise a second referendum. What do the Government make of the more hysterical claims of Brexiteers about Northern Ireland, which has been the pinch point all along? I am thinking especially of the claim that there are no trading, constitutional or legal differences between Northern Ireland and the rest of the UK, when we all know that there are already significant differences on agriculture, animal checks, future corporation tax, abortion and same-sex marriage—I could go on.
I am not going to prejudge what the other place does in relation to its decision on this deal. As noble Lords have rightly said, it will have a vote on this deal. We believe it is the best deal and we will be encouraging the other place to support it, and I believe that it will.
My Lords, one of the consequences for our fisheries is that the negotiations will lead to the regulation of fisheries in a non-discriminatory manner and to the putting in place of an agreement on quotas and access to waters which will continue after the transition period. Does that not indicate that the promise made by Brexit supporters to fishing communities, that Britain would have total control of its fishing waters and unlimited access to the fish regardless of international agreements, was not realistic?
My Lords, under the proposed deal, during the implementation period the UK would be subject to all EU rules, including on freedom of movement. Why then does my right honourable friend the Prime Minister continue to rule out membership of the European Economic Area and the European Free Trade Association as an alternative interim state?
Privileges and Conduct
Motion to Agree
My Lords, in moving this Motion, I will speak also to the amendment to the Motion in the name of the noble Lord, Lord Pannick.
The report before us relates to a finding that the noble Lord, Lord Lester of Herne Hill, sexually harassed the complainant, offered her a corrupt inducement to have sex with him and warned her of unspecified consequences if she did not accept his offer. The complaint was investigated by the House’s independent Commissioner for Standards. She found that the conduct of the noble Lord, Lord Lester, was in breach of the provision in our code of conduct that all members must act on their personal honour. The commissioner’s findings were considered by the Sub-Committee on Lords’ Conduct, whose role it is to recommend an appropriate sanction. That sub-committee recommended that the noble Lord, Lord Lester, should be expelled from the House.
The noble Lord, Lord Lester, appealed to the Committee for Privileges and Conduct against the findings and the sanction. That committee considered a detailed set of papers on appeal and heard from the noble Lord, Lord Lester, in person. We dismissed the appeal of the noble Lord, Lord Lester, against the finding that he had breached the code and we endorsed both the approach and the conclusions of the commissioner.
In relation to the appeal of the noble Lord, Lord Lester, against sanction, we upheld his appeal against expulsion and recommend instead a period of suspension. The committee was conscious that at the time of the breach of the code, the power to expel a Member of the House, which has now been conferred by the House of Lords (Expulsion and Suspension) Act 2015, was not available. At the time the noble Lord, Lord Lester, breached the code the maximum sanction available was suspension to the end of the Parliament in which the suspension started. We concluded that the noble Lord, Lord Lester, should be suspended for a period coterminous with the maximum expected length of the present Parliament. We accordingly recommend that the noble Lord, Lord Lester, be suspended from the House until 3 June 2022. I should be clear that this is our recommendation to the House irrespective of whether or not a general election takes place before 2022.
My Lords, it may be helpful to the House if I say a few words in anticipation of the amendment of the noble Lord, Lord Pannick. The amendment suggests that the Commissioner for Standards did not conduct her investigation in a way that conformed with natural justice and fairness. This is a serious claim and one that the Committee for Privileges and Conduct considered very carefully, because it was a central point of the appeal of the noble Lord, Lord Lester. We were very clear in paragraph 12 of our report that we did not,
“accept Lord Lester’s contention that the Commissioner was at fault in the way she carried out her investigation”.
That was the unanimous position of all 14 members of the committee. In coming to that position we listened with particular care to the opinions of two of our members with considerable judicial experience, the noble and learned Lords, Lord Mackay of Clashfern and Lord Hope of Craighead. I hope that they will both speak later in this debate.
The amendment of the noble Lord, Lord Pannick, directs us to consider the procedures the commissioner followed in her investigation. Let me remind the House what they are. They are set out in the guide to the code and they are kept under review by the Sub-Committee on Lords’ Conduct, chaired by another member with considerable judicial experience, the noble and learned Lord, Lord Brown of Eaton-Under-Heywood.
Paragraph 124 of the guide to the code states:
“Proceedings are not adversarial, but inquisitorial in character.”
Then paragraph 127 says:
“Complainants have no formal locus once an investigation is under way: they have no right to be called as a witness, though they are expected to co-operate with any investigation and to supply all the evidence in their possession when asked to do so. Nor do members accused of misconduct have any entitlement to cross-examine complainants, though they are given an opportunity to review and, if they so wish, challenge the factual basis of any evidence supplied by complainants or others”.
This House has set out a process that does not include cross-examination but does allow for the rigorous testing and review of evidence. It is a process that has been in place for many years and has been used to investigate other extremely serious allegations against Members of this House. It is a process that the noble Lord, Lord Lester, himself vigorously defended in a speech in the House on Wednesday 20 May 2009. In that speech, the noble Lord, Lord Lester, referred to the conduct of the investigation into allegations against Lord Taylor of Blackburn. Lord Taylor’s solicitors claimed that Lord Taylor had been,
“denied basic procedural safeguards guaranteed by domestic and international law, and by the House of Lords’ own rules. Not least of these is the right to know the charges against you and to test the evidence against you through cross-examination”.—[Official Report, 20/5/09; col. 1411.]
The noble Lord, Lord Lester, then summarised his own position as follows:
“I do not consider that there is a breach of the principles of natural justice or fairness, which are flexible principles. They are not conceivably breached in this case, and the penalties are in my judgment entirely proportionate”.—[Official Report, 20/5/09; col. 1412.]
The view of the noble Lord, Lord Lester, was shared by the House in that case and remains shared by the House to this day.
I also suggest that if any noble Lord has any doubt about the care with which the commissioner tested the evidence, they should refer to her own description of the process she followed, as set out from page 94 of the published documents. Let me also remind the House that the commissioner is herself a highly experienced investigator. She is a former President of the Law Society and now sits as a judge. She applied the processes that this House has set down for enforcement of our code of conduct. She should not be criticised for doing exactly what the House tasked her with doing and which the Committee for Privileges and Conduct found she had done properly.
Perhaps I may finish by saying something about confidentiality and anonymity. Throughout the process the identity of the complainant was kept out of the public domain. That is why information and details in the report as published were redacted and a number of annexes have not been published at all. The complainant has, since the report was published, made her identity known. This is of course entirely her decision and I hope that noble Lords will respect that. That does not in any way undermine the approach taken to confidentiality during the process or the need to publish a redacted report. Looking ahead, it is important that we give confidence to others who may come forward with complaints about sexual harassment that their identity can be kept secret if that is what they wish.
I beg to move that the second report from the Committee for Privileges and Conduct be agreed to.
Amendment to the Motion
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.”
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—
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.
It does not take much imagination from noble Lords to contemplate how they would feel if they were now accused of such an offence, said to have been committed more than a decade ago, and then subjected to this procedure. If a report produced by this procedure were produced in the case of someone being suspended from his trade union, from the City of London, or from his golf club, I can tell noble Lords that I would have no difficulty whatever in overturning that report in the courts of this country. The noble Lord, Lord Lester, cannot go to court because of parliamentary privilege. It is therefore our obligation to apply at least equivalent standards in addressing these matters.
The procedure adopted by the Commissioner for Standards failed to meet the standards of natural justice and fairness. I hope that the House will agree that this matter needs to be remitted to the Committee for Privileges and Conduct so that it can be encouraged to begin the process, delayed for far too long, of devising a procedure ensuring that complaints of this nature are considered in a fair and effective manner, so that the injustice done to the noble Lord, Lord Lester, is not perpetrated. I beg to move.
My Lords, I agree wholeheartedly with the noble Lord, Lord Pannick, that the statement in the Code of Conduct requiring the commissioner to act in accordance with the principles of natural justice and fairness transcends any statement in the guidance to the code that limits the cross-examination of witnesses. In an appropriate case, the evidence requires to be tested—and I can think of no more appropriate case than this, where the international reputation of the noble Lord, Lord Lester, is threatened by an allegation more than 12 years old of harassment, which is a criminal offence. The consequences for him are immense.
There is a further aspect of these proceedings which concerns me. The code does not lay down any detailed process for the investigation of complaints. The proceedings are inquisitorial, which means that the commissioner acts as both investigator and judge. Ironically, the working party, which published its Independent Complaints and Grievance Scheme Delivery Report last July, recommends that the roles be separated: there should be an investigator to investigate and report and a decision-making body to receive the report and determine the complaint.
Without an explicit process to follow in this case, the commissioner made up her own. Her lack of forensic experience—although she is a very distinguished lawyer in other respects—and her lack of confidence are demonstrated by the need, as she saw it, to consult a friendly judge for guidance. She collected the evidence, interviewed such witnesses as she chose in informal interviews, some of them merely on the telephone, and ignored other witnesses suggested to her by the noble Lord, Lord Lester. She then came to a judgment on the facts and upheld the complaint. Her findings of fact under the code could not be reopened before the sub-committee on conduct, nor on the appeal before the full committee. The challenge on appeal of the noble Lord, Lord Lester, had to be as to the fairness of her investigation and the process by which she came to her conclusion. It was not and could not be a rehearing of the facts.
The commissioner made mistakes. For example, her approach to the evidence was in my view to reverse the burden of proof and to apply a standard of proof which did not reflect the severity of the consequences of her findings. I remind the House that the guidance at paragraph 128 states that in order to find against a Member,
“the Commissioner will require at least”—
“that the allegation is proved on the balance of probabilities”.
That means that in appropriate cases, the standard of proof should be higher than a mere 51 to 49. There are other flaws of forensic analysis which I will not trouble your Lordships with.
The most extraordinary aspect of these proceedings, however, was that the commissioner made herself a party to the appeal process. Between pages 94 and 111 of the report, there is set out the commissioner’s point-by-point refutation of the grounds of appeal of the noble Lord, Lord Lester. This is the first time that I have ever come across a judge making herself the respondent to an appeal against her own judgment.
So what submissions did she make to the appellate committee? First, she said that the noble Lord, Lord Lester, did not accept the legitimacy of her investigation. This is not surprising, since we are about to scrap it anyway when the report of the working party is received and put into effect. Secondly, she said that, as the noble Lord, Lord McFall, pointed out, the noble Lord had spoken in support of the procedures in 2009, when the question of the conduct of the four Peers who had been convicted by criminal processes was dealt with. The commissioner criticised the status of counsel’s opinion—Mr Perry’s opinion. She questioned the independence of his opinion of leading counsel, on the basis that he was instructed by the solicitors of the noble Lord, Lord Lester. In paragraph 30, she said that its status was,
“only an opinion, not an accepted decision made in an adversarial court”.
There is an irony in that, is there not?
Paragraph 31 states:
“In a standard appeal the appellant (Lord Lester) and the respondent (me) would both put up legal arguments (opinions) as to why the appeal should, or should not be allowed. I do not have that option, as the processes set out in the Code do not permit this. However, what I can say is that, if I had that opportunity, I have no doubt that I would be able to obtain a reputable, eminent opinion that disagreed in many, if not all, respects from that of Mr Perry and Ms Davidson”.
That is her view: she described herself as the respondent to the appeal. Nothing in the code suggests that the commissioner is entitled to such a role.
She then criticised the attempt by the noble Lord, Lord Lester, to introduce fresh evidence and submitted in paragraph 34:
“The Committee will be aware that it is not its role to reopen the investigation, but simply to ‘use their judgment to decide whether, on the balance of probabilities, they endorse the conclusions of the Commissioner’”.
“I do not believe the Committee should admit”,
this fresh evidence,
“or use it to re-open the investigation”.
These are submissions made by the judge, the finder of fact whose facts could not be challenged—and there she was, defending the process.
She continued to assert that the noble Lord, Lord Lester, was responsible for any inaccuracies in his grounds of appeal and alleges that he was guilty of unsatisfactory conduct during her investigations. In paragraphs 53 to 103 she sets out point by point her challenge to his grounds of appeal and her defence of her own conduct of the investigation. She—the judge against whom the appeal is being made—concludes in Paragraph 104:
“For the reasons set out in this paper and in the appendix to this paper I am confident in my findings and in the processes I applied throughout my investigation. I ask the Committee to dismiss Lord Lester’s appeal against my findings”.
I very much doubt that as a part-time judge in a mental health tribunal the commissioner has ever appeared in the Upper Tribunal to argue against an appellant appealing her own judgment and inviting the Upper Tribunal to dismiss the appeal.
So how did this travesty happen? Was she invited by the clerk or the chairman of the Committee for Privileges and Conduct to make these representations? Or did she jump into the arena of her own accord? Did the noble Lord, Lord Lester, consent to this? Was he asked whether she should make herself a respondent to the appeal?
The proceedings before the Committee for Privileges and Conduct were remarkable. Any Member who is brought before it on a charge of not acting on his or her personal honour should bear in mind that, however ancient the allegation, however old you are—the noble Lord, Lord Lester, is 82—however much you may have been touched by dementia like Lord Janner, whatever stress or illness you may be suffering—and the noble Lord, Lord Lester, was defending the potential ruin of a lifetime’s reputation—you, every one of you, will be on your own. You cannot have anyone speak for you, much less present your case—and the noble Lord, Lord Pannick, was there ready to do it.
While my noble friend is setting out a very cogent case as a lawyer, does he accept that the commissioner was appointed by this House and that he and the noble Lord, Lord Pannick, need to accept that the procedures are the procedures that were adopted by this House and that, whether they are fit for purpose or not, they are the procedures that we have today? They are the procedures that will affect all of us as we sit here in this House. It is our honour and our integrity, and my noble friend impugning the integrity of someone this House has appointed does not help the case of his and my noble friend Lord Lester.
They may be here today, but they will be scrapped next week when the report of the committee is received. This is the only time that these procedures have been used in a sexual harassment case. That is why the commissioner was left on her own to invent the procedures.
My noble friend Lord Lester was entitled reasonably to expect that he could present his grounds of appeal to the committee without them being undermined beforehand by the submissions of the commissioner. Her submissions were before the committee in written form, but she was never required to present them in person to have them examined, questioned and tested. By contrast, as the report shows, my noble friend Lord Lester was given 30 minutes to make his oral submissions and, contrary to the traditions of the Judicial Committee of this House, of happy memory, he was heard in silence without the engagement, questioning, teasing out of points or discussion of any of the matters raised by the commissioner by way of refutation. He was not questioned at all.
Lest the commissioner or anyone else, including my noble friend, should suspect that I am acting as a mouthpiece of my noble friend Lord Lester, let me make it clear that although on many occasions I have worked with him in this House and many times deferred to his views in the field of human and women’s rights, our paths have not crossed socially or professionally. I have had no discussion with him at any stage or with anyone else, including the noble Lord, Lord Pannick, about these allegations and was unaware of the progress of these proceedings until I read the report on Monday evening. The analysis of the report that I have set out is entirely mine, and I do not pretend to speak for my party in any way.
After 22 years in this House, I am distressed at the distance that I consider the House has fallen from fairness and natural justice. I am also shocked that, after all the attempts to protect the identity of the complainant and redact the report, she herself, on the day that this report was published, should have given an exclusive interview to the Times together with personal photographs. If anything goes to credibility, that does. It makes a mockery of our procedures, and I can only hope that a charity has fully benefited from her.
My Lords, I wonder if it would be of assistance to the House if I were to speak next. I should explain that one of my duties as Convenor of the Cross-Bench Peers is to sit upon the Committee for Privileges and Conduct. That is a responsibility that I bear on behalf of my colleagues on the Cross Benches, and I had the important duty of sitting on this particular committee. I shall explain succinctly why I felt unable to accept the contention of the noble Lord, Lord Lester, that the commissioner was at fault in the way that she carried out her investigation. I have of course listened with great care to what my noble friend Lord Pannick has said in presenting the amendment.
I shall concentrate on two matters: what the commissioner did and what she was required to do. The first thing that she did, as required by paragraph 119 of the guide, was to seek and obtain the agreement of the sub-committee, chaired by my noble and learned friend Lord Brown of Eaton-under-Heywood, to investigate. That is because the alleged incidents occurred more than four years before the complaint was made. She obtained that consent from the sub-committee and proceeded to receive the details of the complaint and then meet the noble Lord, Lord Lester, to provide him with the details that were contained in it.
The noble Lord then began a process of challenging the process being adopted by the commissioner. First, he asked for an alternative procedure by way of a dialogue to be adopted so that he and the complainant could meet together with the commissioner to discuss the incidents that she was complaining about. The commissioner was uncertain as to what she should do about that, so she went back to the sub-committee to find out what its advice was. In the meantime, the noble Lord, Lord Lester, had complained to the sub- committee about the fairness of the procedure. The important point to note is that the commissioner was told by the sub-committee that she was bound to investigate the complaint under the procedure laid down by the code and the guide to conduct. I emphasise that point because I think it should be realised that if there is any basic fault in the procedure, which is my noble friend’s essential point, the sub-committee shares the responsibility for the way in which the case proceeded, as does the sub-committee that looked at the matter afterwards.
The instruction from the sub-committee was to follow the procedure laid down by the code and the guide. The Senior Deputy Speaker very helpfully set out a good deal of what is contained therein and I do not want to go over it, but there is a crucial passage at paragraph 124 that has to be understood and that has been in the guide for many years. It says:
“Proceedings are not adversarial, but inquisitorial in character”.
That is a crucial passage in the guide, which is followed through in the following paragraphs that talk about no entitlement to cross-examination. The point is that an adversarial process is one where cross-examination is indeed resorted to and, as I think my noble friend was suggesting, one might well have counsel to assist in putting those questions. That is the nature of the adversarial process that all of us who have sat as judges, and indeed who have appeared in courts as lawyers, are familiar with, but this was an inquisitorial process where the conduct of the inquiry was in the hands of the commissioner, appointed, as has been pointed out, by the House to conduct this process as an independent and impartial investigator.
One has to understand that because, when one comes to the phrase, which has also been quoted, that the commissioner,
“shall act in accordance with the principles of natural justice and fairness”,
one has to understand what that phrase means. The principles of natural justice have been established in our common law for many years. There are two of them, assuming of course that the investigator is impartial. Principle number one is that the person complained against shall have fair notice of the case being made against him. Principle number two is that the person complained against shall have a fair opportunity to answer to the complaint. Those are the principles of natural justice that are universal and which are referred to in that paragraph in the guide. Cross-examination is the essence of an adversarial process, and one must assume that when the House approved the guide in this form it understood very well that this was the nature of the process that it wished to adopt. One might say that the important point was to keep the adversarial element—counsel and all the rest of it—out of it and put it in the hands of the commissioner so that she could conduct the inquiry as best she could.
If one follows through what the commissioner actually did—I do this not to reopen her inquiry, which we are not allowed to do, but to test the coherence of what she did—one sees that she interviewed the noble Lord, Lord Lester, to discuss aspects of his statement. She said she gave him the opportunity to tell her anything else that he thought was relevant, applying the principle of natural justice. Significantly, his response was to deny the allegations in every particular. As she said, his case was not that it was a misunderstanding or a misinterpretation, so either the complainant or the noble Lord was not telling the truth, and she had to decide that issue.
As we know from the report, she then contacted witnesses, and she used her discretion as to how best to do that. She provided the noble Lord, Lord Lester, with copies of the statements by these witnesses. She then considered no fewer than 12 challenges that the noble Lord made to the progress of the investigation so far. Here your Lordships see the second principle, the opportunity to reply, being applied. She then showed him her draft report. He made 10 more representations, each of which she considered and dealt with before the report was finalised. So if one works through the report, one finds that she conducted the process in accordance with fairness and the principles of natural justice.
She noted that there were discrepancies between the complainant’s statement and those of the witnesses but, as she pointed out, that was not altogether surprising in view of the lapse of time. Indeed, on the contrary, if they had been exactly fitting with each other, that might suggest collusion, which, in her judgment, was absent in this case. She accepted that the witnesses were telling the truth as best they could.
She said she did not need to examine each of the allegations in great detail, the reason being that the complaint was not said to arise from a misunderstanding or misinterpretation and she was not provided by the noble Lord, Lord Lester, with material to conduct a penetrating investigation of the kind where one might put to the complainant alternative explanations for what might have happened. I think she was saying to us in the report that it was not for her to construct the noble Lord’s excuse if he did not provide that excuse to her himself.
I have two final points. She said that when she was dealing, as so often with these very difficult cases of sexual misdemeanours, with competing positions of the two people involved, on the whole she might have regarded this as a 50/50 case where the balance was not tipped against the noble Lord, Lord Lester. That was why she had regard to the witnesses to see if she could test, by some independent evidence, whether there was a cogent reason for preferring the complainant’s account of what had occurred. All that is perfectly orthodox, coherent and understandable.
The last and most important point is one that every judge who sits in an appeal has to appreciate and I suggest to your Lordships that we should grasp it too: the commissioner had the great advantage of seeing, interviewing and assessing the complainant herself. We do not have that advantage. The commissioner’s advantage is one that she alone had, and it was her assessment of credibility that was crucial to the determination of this case.
There has been a lot of criticism of the commissioner’s conduct. I respectfully suggest that she conducted the process to the best of her ability and in accordance with the rules provided for her by the House, which the House looked at in 2010, for example, and has not sought leave to change. I do not think the process could be said to have been at fault if tested by the principles of natural justice and fairness, and I respectfully submit to your Lordships that the amendment should not be agreed to.
My Lords, as a non-lawyer, I support the amendment of my noble friend Lord Pannick and agree with everything he said. In doing so, I recognise that I am raising serious doubts about the fairness of our procedures in cases such as this involving sexual abuse and harassment. I also recognise that my actions could be interpreted by people outside the House as special pleading for one of our own. This latter point is in no way my intention, and I claim in no way whatever that the noble Lord, Lord Lester, is innocent. I simply do not know. I am not a personal friend of the noble Lord, although I have known him for more than 20 years, and I do not know him socially.
My only concern is the same as that of my noble friend Lord Pannick: that we are operating a flawed system that can unfairly totally damage a distinguished person’s life and reputation. As I said, I am not a lawyer, but I have been involved in a case where I was cross-examined in a tribunal when I sacked a black manager for sexually abusing a child in care. I accepted that cross-examination because I had taken a serious action that would damage that individual and their livelihood. I was cross-examined for more than an hour about my actions and the evidence I had for taking those actions. So I have had the experience of being cross-examined and having my judgments tested in, in effect, a court.
At the heart of my concern is whether our procedures are fit for purpose to deal with allegations of historic sexual abuse or harassment. That is the issue. These are notoriously difficult issues to address fairly, as other jurisdictions have found. I accept that we do not wish to prevent complainants—very often women —coming forward, often after a long period after inappropriate conduct has occurred. Equally, we now have enough experience of false claims to know that evidence must be properly tested before people’s reputations—usually men’s—are trashed unfairly. This balance can be difficult to achieve to everyone’s satisfaction, particularly given the historical discrimination against women.
In this case, my reservations about accepting this report as it stands turn on whether the noble Lord, Lord Lester, was given an adequate opportunity to legally and forensically test the credibility of the complainant’s evidence before adjudication was made. I do not think, on the evidence available to me in the report, that he has. That therefore could lead to a possible unfair adjudication that destroys his reputation.
Given the serious consequences of the report for the noble Lord, Lord Lester, I feel extremely uncomfortable about simply nodding it through because it conforms with flawed guidance that we have given the commissioner. I can also foresee that if we do not examine our procedures more carefully now, we could mishandle many further cases that come forward. You would have to be a great optimist to think that there will never be further cases. For those reasons, if my noble friend Lord Pannick wishes to test the opinion of the House, I will support him.
My Lords, I, too, am not a lawyer and I venture into this space with great trepidation, having heard the speeches that have gone before, but the noble Lord, Lord Pannick, for whom I have the greatest respect—I mean that very sincerely—has moved an amendment which we are now discussing. The amendment tells us that it is his view that the commissioner failed in her duty. That is not the same as suggesting that our procedures are flawed. Our procedures may well be flawed, but that is not what we are debating.
What has occurred this morning and in the lead-up to this debate—the comment in the press and elsewhere—is that the commissioner is being traduced. What is being said of her is that either she is incompetent or she acted in bad faith. Both of those are very serious allegations—
Well, my Lords, I say that for this reason. It has not been put to us in the amendment that the Code of Conduct and the guidance that goes with it is flawed. That has been said by other speakers, but it is not in the amendment. The amendment says that the commissioner has failed to apply the Code of Conduct and the guidance that goes with it effectively and in accordance with the principles of natural justice and fairness.
If it is not said that the Code of Conduct is in itself flawed and therefore cannot be applied in that way, the fault appears to be hers and it therefore must be—must it not?—that she has applied it either because she is incompetent or knowing that she was applying it unfairly. That is a grave allegation to make against someone who this House has appointed to carry out its wishes in respect of a Code of Conduct which, we are now being told, is or may be flawed and is or may be in the process of being discarded. She could only apply the Code of Conduct before her at the time of the investigation.
Whatever the rights and wrongs of the case that she considered—like everyone else here, I am in no position, nor would I wish, to make any comment on that at all—it is, and I shall choose my words carefully here, perhaps regrettable that Members of the House have chosen to attack a public servant who is acting on its behalf when there is apparently no evidence that she acted either incompetently or in bad faith. For that reason, I must say that I cannot support the amendment of the noble Lord, Lord Pannick.
My Lords, it is with degrees of trepidation that I take part in this debate, particularly as it is dominated by wonderful legal brains. My reason for speaking is that many years back now, I was asked by the then Leader of the House to lead the group that was to set up the Code of Conduct. In November 2009, our recommendations for the Code of Conduct were unanimously accepted by this House. Since then, with some technical adjustments, that code has remained in place and we have all lived with it, under it and, in a sense, for it. It is on a sad day—I use those words explicitly—such as this that we have to re-examine what we have accepted for many years. I am therefore in no way questioning what has been said in the amendment by my noble friend Lord Pannick, nor what has been argued by other lawyers. I want briefly to appeal to the House to remember that in the early stages of our current Code of Conduct, there was real anxiety on the part of the House that it should not become a lawyer’s charter and that we should avoid the adversarial approach to cases that were brought before us.
The background to that early production of a code was the self-regulation philosophy of your Lordships’ House. We have protected that and argued for it over the years, and it is something that we should be proud of and protect to the end as being one of the strengths of your Lordships’ House. So it was in those early days, when people argued that there would be occasions such as this when a case would be raised which would have something to do with the wording of the code, that we had to have some form in which we could avoid that adversarial approach or, I say again, the lawyer’s charter.
We came up with a phrase which has now endured all those years. It is simply put: personal honour. If you examine the wording of the report which we produced, and which still stands on page 4 of the Code of Conduct, you will see that we tried to analyse what personal honour means. We did so in ways and in words that I believe envelop individual cases, not least the case of the noble Lord, Lord Lester. In the list of the words that we have put in our report, we have covered virtually every incidence that could come before the Privileges Committee and then to this House; for example, selflessness, integrity, objectivity, accountability, openness and honesty are some of the words that we suggested. I am not referring to the individual facts of this case, but I am defending the Code of Conduct and our method of investigating issues such as this case, and appealing to the House to remember that the spirit of this House demands the degrees of honesty and consistency, which I submit is present in the way in which we operate the Code of Conduct in this House.
I have listened to the speeches that have already been made, and I start off by declaring my interest. I am afraid that, in relation to issues before us, I have more than one interest to declare to the House. The first is that I have known the noble Lord, Lord Lester, for many years, and my family and his family are friends. I emphasise that I am not acting on his behalf; I was never approached to act on his behalf in submitting to this House my view on the issues before us. Secondly, I emphasise my professional career as it appears in the register, which I do not need to elaborate on because I know it is before the House and, I respectfully say, speaks for itself.
I should disclose that I have conducted a number of investigations. I have been fortunate in that I have been entrusted by Governments, not only in this country but in others, to conduct those investigations and advise. I disclose that I am the editor of one of the leading textbooks, now in its eighth edition, which deals fully with the question of natural justice. I refer to that because natural justice is central to the issues before us. Although the noble and right reverend Lord, Lord Eames, is absolutely right about the problems of getting involved with court procedures—to use a euphemism for what he was seeking to describe—the fact is that whether you are deterred by that or anything else, anyone whose life’s work and reputation, acquired during his working life, are challenged is entitled to natural justice as a minimum, basic element of any form of investigation. Knowing what natural justice is, and being conscious that we are at the 20th anniversary of the Human Rights Act, I emphasise that that is particularly important when a person is put in a position such as that of the noble Lord, Lord Lester.
The word adversarial is one that nearly always involves cross-examination. But the word inquisitorial does not mean that you cannot have cross-examination. That is contrary to the sense of the word, and the ignorance about that is very worrying to me. For a time, I was chairman—as the noble and learned Lord, Lord Brown, is now—of the sub-committee which dealt with these matters as they then were. Having done that job for a time, I decided that the provisions were wholly unsuited to the purpose they were meant to cover. I was deeply uncomfortable that they were not fit for purpose, and I made that clear to the authorities of the House. That is based on my experience, to which I made reference.
With that background, I come to look at the code as it is now. There is nothing that I would object to in it. There is nothing I would object to in many cases—not allowing lawyers to come anywhere near the process—but I emphasise that that is on the basis of looking at the issues that have to be determined and deciding what procedure is appropriate. The ones we are dealing with—what the commission had to deal with and two committees had to consider, as well as the commissioner—were peculiarly difficult to resolve in some cases. They are peculiarly difficult especially when there is a sexual connotation, which is what is complained of here.
I go back a long way as a judge and barrister, and remember when it was required in common law that when an allegation is made, corroboration is required. In addition, it was the duty of judges to warn a jury that it was dangerous to convict unless there was corroboration. It was also well-established that complaints made at the time are not corroboration. I say that only because—I do not blame the commissioner—the position in law today is much more flexible. A complaint is not corroboration but it is very easy to see it as such, and the commissioner in this case saw it as corroboration. She was saying that because of the complaint, there was no need to investigate other things. She was wrong on that because unfortunately, the common law acknowledged what we have to acknowledge today: that there are sometimes motives for making false allegations in cases involving sexual conduct which disguise the reality of the situation.
It is all too easy to say that, because a complaint is made, the matter is proved, because you think that the person who gives evidence of the complaint is speaking the truth. They may be, but that does not avoid the need to answer the question whether the person making the complaint is telling the truth when she makes it. This is just the basic experience of lawyers such as myself who have had to try these cases.
When you read the commissioner’s report—I do not criticise her in any way—you realise she had a very difficult task. I believe that any one of the lawyers in this House would say that if they were given the task she had of determining whether this matter was proved or not, they would conclude that if they were not allowed to have cross-examination—were not at least allowed to confront the complainant by the person complained against—it would be difficult, if not impossible. They would feel uncomfortable about coming to a view that one person was guilty or innocent with regard to the critical issue of where the truth lies. I do not know where the truth lies here, but I do not think the commissioner had the opportunity to determine that issue.
On the complaints made about the guidance as opposed to the Code of Conduct, the first point has already been made that the guidance is subsidiary to the code. However, if you read the guidance very carefully, it does a fairly good job. First, it says that the process in the normal way has to be not adversarial, but inquisitorial. As I have indicated, that does not mean—although I think that the commissioner believed it meant—that she did not have any discretion. The code, like the guidance, said in terms that natural justice had to be observed. That meant that there would be some cases where there should be a different procedure to see that justice was done. However, neither of the committees that oversaw the commissioner pointed that out to her. With the greatest respect to them, and without seeking to undermine those very important committees, I think they should have done. Again, in my view, she did not apply the right burden of proof, which goes right to the essence of this matter.
The noble Lord, Lord Pannick, has already drawn attention to the critical words “at least” in respect of the balance of probabilities. This is a case where that balance cannot be decided on just 51%, as the noble Lord has pointed out. It has to be adjusted to the seriousness of what is alleged. This is the course that all courts, civil and criminal, take. If they want to deal with balance of probabilities, they recognise that the balance can fluctuate according to the seriousness and gravity of the issue at stake.
Again, I do not criticise the commissioner in any way. I believe that she did everything she possibly could to try to resolve the matter. However, it was not clear to her in some respects and I suggest that that is worrying. She should not have been asked to deal with this matter without assistance. If it was thought that the parties should not have legal advice, she should at least have had an experienced tribunals assistant and assessors with her who could have assisted in these matters.
I have taken up quite a bit of the House’s time and ask noble Lords to forgive me for doing so. However, I think the House has a very serious task today. I do not think—and I am quite satisfied about this—that it can be shown that the noble Lord, Lord Lester, had a fair crack of the whip, and a famous judge described natural justice as requiring a fair crack of the whip. It was unfair because, as anybody who shares my experience of such procedure would know, with the best of intentions it has gone wrong at all three stages. We cannot leave the matter in that way. We have to show that we believe in natural justice as well as the code and the guidance. When it is clear that there has not been natural justice, we must do the right thing and send the matter back so that it can be clarified.
You heard from the noble Lord, Lord Pannick, that a distinguished judge—a contemporary of mine, Lord Nicholls, whom we all respect—recommended that what I have just been saying should have happened. That part of his report was not implemented, and it should have been. I am afraid that the truth of the matter is that the House has become over-protective. When I was chairman of this sub-committee, I felt it wanted to underrate the responsibilities involved and that the matter had not been given the attention that it should. Since that day, greater attention has been paid and a real attempt has been made to improve the position. It is much better than it was, but that does not mean that there cannot be occasions when, although the offence alleged is very serious—or, as I would say, because it is very serious—special steps should be allowed to be taken so that justice can be done.
The reputation of this country for justice depends on the leadership this House gives. This House cannot and must not send out a message that it is not really interested in natural justice. If people are worried that this might deter from doing so others who are in a position to complain properly, that is worrying and we should be concerned about it. However, our concerns for them must not enable us to overlook apparent injustice, and that is what has happened here.
My Lords, I asked to speak because I was leader of the Liberal Democrats for nine years from 2004 to 2013 and this case happened on my watch. I understand the difficult task of getting the balance right in the system. There is a worrying development, as the noble and learned Lord, Lord Woolf, has rightly said. We have to get the right decision in terms of fairness and natural justice. Simply getting behind the commissioner because we have appointed her or because this committee, or that committee, or the Senior Deputy Speaker has put his name to it, misses the point.
The report has been put before the House for debate and, I hope, for the Senior Deputy Speaker to listen to what has been said. If we just follow the book, if we just make it that the rules are the rules, we are in grave danger of a great miscarriage of justice. I have two hopes: first, that the Front Bench, which I see is getting very restless, realises that this goes to the very heart of what this House is about and that those who want to speak in this debate should be heard, because it is very important; and, secondly, that in listening to the debate, the Senior Deputy Speaker will realise that some very valid points have been made and need to be addressed.
Benjamin Franklin said:
“It takes many good deeds to build a good reputation, and only one bad one to lose it”.
We know how easily a reputation can be destroyed and how difficult historical cases are. We have only just come through the passage of suffering that had to be faced by Lord Guthrie and the family of Lord Brittan before their historic cases were dealt with. In destroying a reputation we have to be very careful that the accused has protections as well. Certainly in the case of the noble Lord, Lord Lester—Anthony—the report makes it very clear what is at stake in paragraph 11:
“for decades past the respondent has been one of the most widely known, effective and admired of those campaigning for racial and sexual equality in this country, a renowned supporter of human rights and freedoms across the board”.
What has been on trial is that reputation, which is not something that should be destroyed by a flawed process on the balance of probabilities.
I said in opening that I had been leader of the Lib Dems; I have also known the noble Lord, Lord Lester for over 40 years. Given that one of the “public interest” reasons given in paragraph 42 by the commissioner for initiating her inquiry was:
“Those who behave in the way alleged sometimes do so repeatedly”,
let me put it on record that, until the matter came to light, I had never heard any such accusation being made against the noble Lord. It is interesting that we have not seen any evidence that the complaint was part of a “pattern of behaviour” that the commissioner was seeking.
I have acknowledged the difficulty of getting the balance right between complainant and accused. This is doubly difficult in dealing with historic cases, and even more so when what was in operation was not a tried and tested process but one created ad hoc because the code, as it existed, did not cover sexual harassment. I was in fact on the committee—with the noble and right reverend Lord, whom I still refer to as the Bishop—when we put together that code. What happened, as we know, was instigated by a journalist who was known to the complainant and who set up the ground rules for what became the complaint by questions in a letter set out in paragraph 34. They raised no specific case but produced the reply set out in paragraph 35. The ad hoc nature of those ground rules is conceded in the final sentence of paragraph 35:
“It would be open to the House in the future to amend the Code of Conduct to require members to abide by an anti-harassment policy”.
So this is a work in progress. Nobody has ever been tried for sexual harassment under that code. We are in grave danger of finding, through this debate and rigorous examination by this House, the flaws in the code, but of leaving the noble Lord, Lord Lester, stranded on the sandbank of rectitude because we have to back the commissioner and the recommendations before us. That is not what this House is about. That is not why this report is on the Order Paper—it is so that this House can give it rigorous examination and, if it has failings, for those in charge to have the courage to say that they will take it back and look at whether those grounds are sustainable.
I am not a lawyer so I will not go into the matter of the cross-examination, although I think that, for those who have not gone through all the report, the constant use of the term “witnesses” is misleading. There were no witnesses to this event, other than the complainant and the noble Lord. The nearest that there was to a witness was Lady Lester. We must not bandy about that the complainant had six witnesses in her support; she had six people who heard her account of what had happened. The case is about the relations, the things between them after the event, but I notice even today that in her book Shame Travels, published in 2011, her publishers quote the noble Lord, Lord Lester, making a complimentary comment about the book. It seems strange, but never mind.
It was also in the report that somehow the complainant was overawed by the power of the House of Lords. But as the noble Lord points out in paragraph 121—and as we now know because she published her name herself—the lady in question was in her forties and a “confident and determined campaigner”. She is more than that: she is a very successful woman who, at the time we are discussing, was in her mid-forties and had been rightly recognised, both nationally and internationally, for her courage in standing up for women, including powerful and life-threatening prejudices within her own community. Likewise, the idea of her being promised a peerage in exchange for sexual favours is I think given far too much credibility in the report. Surely the noble Lord, Lord Lester, is right in paragraph 56 when he says:
“I have no power to make such offers or threats in respect of peerages”.
Yet it is the accusation of “peerage for sex” that seems to have tipped the balance towards bringing the case within the remit of the code of conduct—and of course given it extra media appeal.
In many ways, the noble Lord, Lord Lester, lost his reputation at the outset of the investigation, when reports appeared in the Times and, a little later, the Sun—the two papers to which the complainant also revealed her identity immediately after the report was published. Yet the commissioner can only say about the initial flagrant breach of confidentiality:
“I have no evidence as to the source of the press reports”.
I notice that the Senior Deputy Speaker did not even refer to what I think was the most serious breach of confidentiality during the process, which was that leak to the press.
When we get to the issue of exceptional circumstances, which caused the commissioner to waive the four-year rule to let in a complaint over 10 years old, the first two reasons given in paragraph 41 have nothing to do with the merits of the case. They refer to,
“the current concern of Parliament to deal with sexual misconduct by its members”,
“the publicity given to endemic sexual misconduct and abuse of power in many fields of work, which encouraged the complainant to come forward”.
We must not be intimidated by the present atmosphere about sexual harassment to make the wrong decision in this case just because of that current climate.
Finally, I come to the draconian sentence of four years for a man of 82, which was changed from complete expulsion only because of a technicality. I in no way belittle the seriousness of the complaint, but the noble Lord, Lord Warner, is quite right: this will not be the last case of sexual harassment that we get, and given that my noble friend Lord Lester was accused of an indecent proposition, I wonder what the committee will recommend for more serious cases of sexual harassment. By deciding on expulsion, it seems to have gone for bust in the very first case.
If the noble Lord, Lord Pannick, decides to divide the House, I will be in the Lobby with him. But I sincerely hope that what was said and will be said in this debate is that the House should be doing its proper duty in this process. That proper duty is not to rubber stamp, tick a box, or to give votes of confidence to this or that chairman, but to get the right decision about the person we are dealing with at this time.
This case did not merit breaking the four-year rule, with all the dangers of historic cases. The process is flawed—the committee has conceded that it is looking for a major review. But most of all, a lifetime’s reputation should not be destroyed on a “balance of probabilities”. For those cogent reasons, we have got this wrong and we should have the courage to say so.
I have known the noble Lord, Lord Lester, for 60 years and declare at the outset that I should be very surprised if he were guilty of the offences alleged, but that is immaterial; I cannot know what happened, neither can any of us know what happened. My concern is entirely with the process by which the conclusion in this report has been reached. We have had a number of weighty and wise speeches, so I can be very brief.
I was worried as the debate began that the speeches of some contributors seemed more about whether we should support the process or whether we should be more concerned about whether the noble Lord, Lord Lester, had received a fair crack of the whip, as the noble and learned Lord, Lord Woolf, put it. Our priority must be to ensure that these allegations are properly investigated and tested and that both the complainant and the noble Lord, Lord Lester, are subjected to the most intense examination so that a view can be formed.
Whether or not our processes are fit for purpose is another matter. On the basis of the debate so far, I have come to the conclusion that, in matters of this kind, our processes are not fit for purpose. They may well be fit for purpose in allegations regarding expenses and things of that sort, but this is a very different sort of situation. We should have the courage to recognise that a process that is satisfactory in one set of circumstances is not satisfactory in this set of circumstances. I hope very much that, either as a result of the noble Lord, Lord Pannick, dividing the House, or as a result of the Senior Deputy Speaker withdrawing his Motion, it will be possible for a second look to be taken.
So far as the case against the noble Lord, Lord Lester, is concerned, it really does seem to me incredible—and I am not a lawyer—that such a serious matter can be concluded on the basis of a balance of probabilities and, as is said in paragraph 18, of the commissioner considering that,
“she was more likely than not to have been telling the truth”.
“More likely than not” and “balance of probabilities” seem wholly inadequate in a situation of this sort. We should, as far as possible, get beyond all reasonable doubt.
I also refer to the speech of the noble Lord, Lord Warner, who talked about his experience of cross-examination, and I should like to do the same. I remember vividly an occasion when I appeared before a Board of Trade inquiry—it was investigating not me but someone else—and gave evidence on oath. I was absolutely convinced that what I was saying was right; all the events had occurred many years before but I was convinced that my memory was serving me correctly. I remembered where the individuals had sat at the board meeting in question and what people had said. Under cross-examination, however, it was borne in upon me that, although almost all my recollections were correct, I had the date of the meeting wrong. I had no interest in giving false evidence. I was trying to help the inquiry. I got almost everything I remembered right, but I got the date wrong, and the date was a very material point. That is why it is simply not good enough for the commissioner to say:
“I considered that she was more likely than not to have been telling the truth”.
I am sure that the witness, or whatever the appropriate word is, was telling the truth, but that does not mean that she was right. That can be determined only as a result of cross-examination.
I will not delay the House any longer. The noble and learned Lord, Lord Woolf, said almost everything that could possibly have been said, in the most convincing fashion, and the noble Lord, Lord McNally, made a very powerful speech. I was certainly impressed by what the noble Lord, Lord Pannick, had to say. In this case, justice is not being done. That is not a judgment on whether the noble Lord, Lord Lester, is guilty or not, or on whether he or the complainant is telling the truth. My judgment is based on the fact that the noble Lord, Lord Lester, has not been given a fair crack of the whip. We owe it to the honour of this House and the honour of the noble Lord, Lord Lester, to ensure that he is given one.
Finally, in recent years a number of institutions, when dealing with questions of sexual harassment and other matters, have put the interests of the institution and its rules ahead of justice towards the individuals. There is a great danger that we are going to become too bound up in our own rules and too little concerned with the fate of the man at the centre of the allegations.
My Lords, I feel impelled to add something because of the importance of this debate, although I appreciate that many other noble Lords have already spoken. I declare a number of interests. First, I have known the noble Lord, Lord Lester, for many years; he used to appear before me, and he is in fact a friend. I also know Jasvinder Sanghera quite well. She is a member of a commission on forced marriage which I chair, and I greatly admire the work that she has done with Karma Nirvana to move forward the work on behalf of women who are victims of forced marriage. As it happens, I also know the commissioner well, because she and I were fellow members of a panel appointing Queen’s Counsel which I briefly chaired. I have the greatest possible respect and admiration for her. I thought it was important to say that because they are basically the three important people about whom we are speaking.
For me, the issue here is not the guilt or innocence of the noble Lord, Lord Lester. That is why we are here, but this is a matter of principle and a matter of enormous importance, as a number of other speakers have said. The wider issue for this House is how it should arrange for allegations of serious misconduct attaching to the personal honour of a Peer, particularly in the contexts of not only sexual abuse but abuse of power, because that is the most important allegation—that he offered her the prospect of becoming a Peer. However, much more importantly, he is alleged to have said that if she did not sleep with him she would never become a Peer because he would stop that happening. If that is true, it is a very serious abuse of power and it affects this House.
I listened with great interest to my noble and learned friend Lord Woolf, whom I have followed over many years in the courts as one of his judges. Interestingly, he said that he saw nothing wrong with the code or the guidance, so what we are talking about here is the application of the code and the guidance to the way in which the commissioner was asked to deal with these very serious allegations, which, if found proved, breach our rules of conduct and personal honour.
I was a judge for 35 years in various positions and I was taught from an early age about the importance of the rule of law, natural justice and due process. I say that with the greatest diffidence compared with my noble and learned friend, Lord Woolf, who has written a marvellous book on the subject. Natural justice and the rule of law, in this House as everywhere else, require due process. Consequently, serious allegations require greater consideration than allegations of less importance.
The financial misconduct matters that came before this House were very serious but, as far as I can remember, there had already been criminal convictions, so it was not very difficult for the process of this House to take its course. This is a very different situation because we are looking at the credibility of competing evidence. Everything that the complainant says, the noble Lord, Lord Lester, disputes. The real problem is how on earth the commissioner is to assess credibility without having the opportunity for the evidence of each to be tested, one against the other.
It appears that the commissioner was not well advised about how to conduct the case, and I have nothing but sympathy for her in the way in which she did it. It appears that, having consulted within the very tight constraints of the rules that she was told existed, she did not allow cross-examination and she did not test the evidence with a view to arriving at the sort of decision on credibility that we would have decided. However, I do not believe that she should be criticised for that, because she did her conscientious best with what lay before her.
It was very difficult for the Privileges and Conduct Committee, on appeal, to do anything other than what an appeal court would have done. However, as has already been said, particularly by my noble and learned friend Lord Woolf, it should have picked up on the fact that there was no proper testing of the credibility of the two main witnesses. Consequently, we have this very unhappy situation. We really cannot allow this House, in 2018, to continue with an inquisitorial system—which is not to be criticised—without the sufficient amount of testing that is required according to the seriousness of the offences.
I want to make a final important point. There has been a suggestion about what the standard of proof should be. There is nothing wrong with the balance of probabilities if one applies the rule set down by the noble and learned Lord, Lord Nicholls of Birkenhead. I was involved at an earlier court in the case in question, so I remember it well. He pointed out with great care that the more serious the allegation, the more cogent the evidence has to be. That is not saying that there is a sliding scale for the standard of proof that goes from being satisfied so as to be sure before a jury to the minimum balance of probabilities being 51% rather than 49%—we are not talking about Brexit now. It is saying that what really matters is whether there is sufficient evidence to meet the seriousness of the allegations. The one criticism that I would make of the commissioner is that she preferred to adopt a later decision to that of the noble and learned Lord, Lord Nicholls, whose rule was to use the balance of probabilities but with sufficiently cogent evidence appropriate to the case.
Therefore, I ask the Privileges and Conduct Committee not to press this matter to a vote but to say at the end of this debate, “Perhaps we should think again. We think that perhaps Lord Lester should have another crack of the whip”, as my noble and learned friend Lord Woolf called it, “and that this case should be properly tried by whatever the process is but with the credibility of the witnesses properly tested”. Not to do so would send a message to the whole country and the whole world that we do not treat the rule of law sufficiently seriously.
My Lords, I rise to speak as a minority in this debate. First, I am a woman; secondly, I am not a lawyer; and thirdly, I am not a friend of the noble Lord, Lord Lester. Having said that, I am very friendly with him—he is a colleague and I respect him enormously for the work he has done over his very long and distinguished career. Also, I have helped and supported women and girls who have faced unwanted sexual harassment in the workplace. Over 20 years ago in my career in local government and as a trade unionist, I sat on many disciplinary hearings of harassment in the workplace at which decisions had to be taken on whether the accused or the accuser was telling the truth. It was not a court of law but an internal disciplinary hearing and decisions had to be taken.
I myself was subjected to harassment when I was younger. I did not feel that I could complain about the individual, who was much more powerful than me—I was a very junior member of staff. I certainly do not think that I would have the courage to do what Ms Sanghera has done in this instance: make a complaint about someone who is obviously well connected and powerful. When looking at balancing this debate, we need to bear in mind how we are perceived outside our bubble here. Towards the end of his contribution, the noble and learned Lord, Lord Woolf, said that he would be concerned if, as a result of these sorts of cases, women were reluctant to come forward. If you think about it, why would they? There is adverse publicity and stress, and the effect on their family and friends is enormous.
I am disappointed that some contributions have strayed into discussing Miss Sanghera as an individual, cherry picking from the report about what she did and did not do, her age, her conduct and what she may have achieved as a well-known woman in public life. When she came forward—I read what she said—she felt that she was a woman who for many decades had been encouraging other women to come forward, particularly from her and other minority communities. We in this Chamber express a lot of concern that these women do not have a voice. We care that in their own communities they may be repressed and not encouraged to go out into the workplace. She has done a lot of work encouraging girls and women to come forward—for example, those who might be subjected to forced marriage or FGM, or child brides. She has done a lot of work on that.
Because of what she alleges happened to her, she felt it would be hypocritical to advocate other girls coming forward if she herself could not come forward. That is a very logical explanation, and I accept that that is why she felt the need to do it after so many years, with the benefit of hindsight. She has been criticised, as have other women who have been victims of historical sexual abuse, rape or assault, for not coming forward at the time. I heard a Member of this House this morning on the radio saying that women should come forward straightaway. If they do not go straight to the police—she did not say this, but it was implied—somehow they should not be believed. That is such a dangerous thing to say. What about those who have experienced historical child abuse? How is that going to be proved? How brave must those men and women be to come forward after decades when they suffered in the past? We have to be very balanced and cautious in this debate. I am not going to stray into the legalities—I am not a lawyer—but I know about natural justice. I know what women go through and how difficult it is. I have some personal experience. My daughters have had personal experience. Most women have had personal experience of this.
Look at the report produced in the other place, in Parliament, on sexual harassment and bullying. The sheer numbers of staff being sexually harassed and bullied in the workplace by MPs was staggering. The argument could have been that maybe this is a new phenomenon. It is not, is it? The new phenomenon is that, thank God, we live in a society where women and girls can speak out. This is not acceptable behaviour. That we have not heard of it before does not excuse it. It is a good thing to shine a light on this sort of behaviour and, as lawmakers, stand up to ensure that it is unacceptable. We do not want this in a modern society. Why should women and girls be harassed sexually or made to feel uncomfortable in their workplace, and that they cannot complain because they may lose their jobs? This is totally wrong. I have been very uncomfortable. I know I am in a minority on my Benches, but I do not think I am in a minority with women outside this House. I believe that the tide has changed now, and we need to catch up with it. The fact that this is the first time these procedures were used for a case like this, and that there was never a procedure for sexual harassment before, makes the case that it was perceived that it could never happen. We know it does take place. We do not know the numbers or all the cases, but we know it happens.
I put it to those here who are better placed to put together a new set of procedures that we need procedures, if these are not fit for purpose, for this situation. I note that our procedures were never challenged before, with other Members who were judged and suspended from this House, or had sanctions against them. Why were they never challenged before if they are not fit for purpose? It seems strange that now they are being judged as not fit for purpose.
I urge that, if this motion is not supported today, we do not send out a message that women are not to be believed or that, because they delayed coming forward, somehow they—or the process we have chosen and used, the commissioner we voted for—should be criticised. We thought it was fine—why would we vote for this? With respect to many of the noble and learned Lords here, why did they never before flag up that this was not fit for purpose? Why did we not hear about that? I am sure we should have. With the benefit of hindsight, perhaps we need better procedures. More cases may well come forward. I have huge respect for my noble friend Lord McNally, but I just heard that he had never heard a whisper before.
In the #MeToo movement, it takes one brave person to come forward. I have already heard rumours of others. Other women—it is usually women—think “I can come forward too now”, because there is a precedent. It was the same with the child abuse scandals. It took decades before those who were abused terribly as children had the courage to come forward. I am sure that is the case with many women as well. I am sure there will be other women—I am not speaking here about the noble Lord, Lord Lester. It has happened with MPs. We must not judge that women who come forward years or even decades later are somehow not telling the truth. Mentioning their age is irrelevant. It could be anybody. I admire what the noble Lord, Lord Lester, has done over the years; we all admire him. But I saw this written somewhere and I thought it very apt: human rights have been enshrined in laws, but we must begin at home. How do we treat people who are not powerful, who do not have powerful friends or friends sitting in your Lordships’ House who can speak and advocate on their behalf? We must begin at home and remember why human rights have been enshrined in our laws. It is to protect the little person as well.
My Lords, the most severe burden that anyone has to carry is adjudicating upon the conduct of our fellow citizens. Many of us have done that as judges and even more as magistrates. It is a very heavy burden indeed, and one which, in this situation, we have to shoulder in respect of a colleague in this House. The responsibility has been put on the Committee for Privileges and Conduct to refer the result of an inquiry to the House. That is what we have done. The committee is composed of the leaders and Chief Whips of all the parties and the Convenor of the Cross Benches. There are also one or two others in it, of whom I happen to be a member. I have been a member for a long time.
I certainly find it a heavy responsibility, because two parties are involved: the complainer and the person against whom the complaint is made. When the complainer decides to come forward with a complaint, they have before them the rules that are to govern the procedure. Therefore, I do not think it is open to this House, if it is to be fair, to alter the rules as they apply to this case. We are bound to apply the rules as they were to this case. As the noble and right reverend Lord, Lord Eames, has pointed out, these rules, in substance, have been approved by the House for a long time. Certainly, my noble and learned friend Lord Woolf says he gave up because he thought it was not fit for purpose. I never heard that complaint and, as far as I know—I am subject to correction and, like many of my friends, I am not at all infallible—it has not been put by any Motion on the Floor of the House. That is my recollection.
The procedure has been laid down in considerable detail in the code of conduct, which says that the procedure to be used is that which is set down in the guide. Therefore, the commissioner and all the committees that dealt with this were bound by the rules that presently exist. It would be extraordinary to try to alter these rules while a case is being considered and after the complainant has put in her complaint. The commissioner is directed as to what to do if there is a conflict. She has to consider both sides and make sure that the person complained against has the opportunity to object. She put all the evidence she had before the noble Lord, Lord Lester, and he had full opportunity to comment on it.
Cross-examination has been referred to. It is, for example, an important part of our criminal procedure. But look for a moment at the opinion that the noble Lord, Lord Lester, obtained. On page 75 of the report, there is a quotation from the High Court of Australia, and it is interesting to see how it puts it—I had better put my glasses on so that I can read it properly. It states:
“Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial”.
That is the adversarial system. The system applied by the rules that this House has approved for almost 10 years —it is nine years, I think—is the inquisitorial procedure. Therefore, it is left to the commissioner to assess the credibility of the people involved by conversing with them in detail, as she has done with both the complainant and the noble Lord, Lord Lester.
I have to say that I have known the noble Lord, Lord Lester, for a long time. He knows that I have very high confidence in him, for reasons that I do not need to go into. However, we now have two people before this House: the complainer, who came to the House on the basis of the current rules, and the noble Lord, Lord Lester, who has sat under these rules for nine years without, as far as I know, bringing forward any complaint or amendment. In that situation, the Committee for Privileges is bound to consider the report of the commissioner and come to a conclusion, one way or the other, but it is not entitled to reopen the proceedings. The commissioner is given the responsibility of deciding where the truth lies.
The commissioner applied the balance of probabilities, which is required by our rules, but she said that, in the particular case she was dealing with, the consequences were serious and therefore she felt that—as the conclusion makes clear—there was cogent evidence from the complainer and her witnesses that this was proved. Therefore, she applied the balance of probabilities in the light of judgments such as that of Lord Nicholls. In that situation, I find it very difficult to see how we can modify the procedures that the complainant expected to confront when she launched her complaint.
She was the investigator and complaints were made about the nature of the investigation. She submitted to the Committee for Privileges a document containing that information. That was submitted to the noble Lord, Lord Lester, for his consideration—the committee was not going to take one side or the other. He then submitted a supplementary comment on that also. The last person we heard speak on this was the noble Lord, Lord Lester. The commissioner was not asked to speak after that. We were firmly of the opinion that the commissioner’s report had to be taken on the basis of what she said, and the committee had the duty of deciding, on the balance of probabilities, whether that was a reasonable decision in the circumstances or to reject it. We also had the knowledge that, if we rejected the commissioner’s report, we were in fact saying that the complainant’s account of the matter was a complete lie. The evidence she submitted on paper was detailed and circumstantial, and the commissioner went over it with her.
My Lords, the noble and learned Lord will know that I intervene with great reluctance. Is he saying that, if the feeling of the House is that, for whatever reason, the process was unfair, nevertheless we are compelled by the rules to do an injustice to an individual?
Not at all. I am saying that the process is perfectly fair. The commissioner gave the noble Lord, Lord Lester, and the complainant exactly the same balance. I do not accept for a moment that this House has approved unfair rules and only discovered that today. These rules have been in position for a long time, and you have to bear in mind that the complainant made a complaint on the basis of these rules. As far as I can see, there is nothing unfair about the rules, so long as both sides get the full account of what the other side has said. In my opinion, that is natural justice: that you have the full account before you. Natural justice would not allow, for example, supplementary evidence to be taken by the commissioner without it being shown to the noble Lord, Lord Lester. As far as I know, there is no complaint to suggest that he was not shown every piece of paper that the commissioner had. He was given his opportunity to explain.
The process then requires the commissioner to make up her mind and submit her report to the Committee for Privileges. The committee’s only responsibility is to decide whether it accepts the report. As far as I can see, nothing has been suggested about the facts of the matter on which she reported which can be shown to be wrong. In the recondite speeches we have heard on the subject of procedure—
I said it was obliged to obey the rules laid down by this House for the conduct of these proceedings. It was 11 years ago, but the rules have been subject to review by the sub-committee ever since. They are still the rules, and they were the rules when the lady came along. We must give that fact a fair hearing on the side of the lady. She came to this place complaining on the basis of the procedure laid down in our rules, and these rules were completely obeyed. No one has submitted that the commissioner did not know what she was doing or had not obeyed the rules: she obeyed the rules as she had them. The idea that she could have employed someone to cross-examine the complainant does not have any support in the rules whatever. She had no authority under the rules to ask someone to cross-examine the complainant.
We accepted what she has put in. It was just an elaboration of what she had said already. As I say, we gave the noble Lord, Lord Lester, a full opportunity to comment on what she had said, and he did so. That was the last part of the proceedings.
In my view, we were as fair as we could possibly be. I take this responsibility very heavily and no one in the Privileges Committee considered this matter lightly. We considered that the matter had been given a fair hearing according to the rules—to both sides—and the commissioner decided the matter.
Perhaps I might point out to the noble and learned Lord, Lord Mackay, that the Guide to the Code of Conduct states specifically in paragraph 143:
“A meeting will be scheduled to hear the appeal and the member will be given an opportunity to appear in person, if he or she so wishes. The Committee may also take evidence from the Commissioner”.
So that is the basis for the commissioner giving evidence. On the day, the Privileges and Conduct Committee did not hear from the commissioner but, because later appeals were put in, we ensured that the noble Lord, Lord Lester, had the last word, and he was brought in for that.
My Lords, of course we cannot change our procedures and rules once a case has started, but if we discover that there has been a breach of natural justice it would be right for the committee not to impose any penalty, and thereafter we would need to look at those rules and make sure that we got them right.
Four important issues have arisen from the debate on which the House should focus, because all of us feel uncomfortable about the present state of uncertainty on these matters. The first point is that it is quite clear from this case—if it was not clear already—that conviction under this procedure has the effect of being totally destructive of both the personal and professional reputations of the accused. It is analogous in that respect to a conviction in a criminal case. It is therefore right that the burden of proof should be the one that is applied in a criminal case and not the one applied in a civil case, where simply losing a civil dispute is not at all the same thing. That change ought to be made as soon as possible.
The second point which has arisen from the debate—and which is a matter of concern to a great many of us—is the issue of cross-examination. It is inherent in these cases that there is rarely any forensic evidence and the whole case turns on statements that are inconsistent with each other and facts which are disputed between the various parties. In those circumstances, it is right and essential that we are entirely clear that there must be a way of dealing with these disputes and this uncertainty. In the history of law no one has found a better solution than cross-examination, and so it should be introduced. As has already been said, cross-examination does not necessarily mean that we should give up our inquisitorial approach. It would require the commissioner or somebody on her behalf—a counsel or, indeed, the committee itself—to undertake the cross-examinations required.
I do not know when the rules were changed but I remember, shortly after I entered this House, reading with great admiration the deadly cross-examination carried out by my noble and learned friend Lord Irvine of a Member of this House who had been accused of a serious offence of a different type. There is no reason why we should not have cross-examinations carried out by the committee itself in those circumstances.
There should be a way of looking through the statements—many of which may be inconsistent and not entirely credible—to get at the truth. That has not been done in a rigorous way in the present situation. I was surprised and alarmed at the casualness of the way in which the commissioner dealt with the various witnesses. Some were contacted by email, some by telephone and some were apparently uncontactable. But it is not clear why they were uncontactable or what efforts were made to contact them—and there were no transcripts of any of the conversations between the commissioner and the complainant, the commissioner and the accused or the commissioner and the various witnesses. That is a thoroughly unsatisfactory situation.
Another thing that has not been mentioned and which emerges clearly from this case is that there are obviously great dangers and risks to justice when there is a long interval between an alleged offence being committed and the complaint about it being made. That is an undesirable situation. We all know that memories fade and erode over time and that after some years people can get muddled about conversations and events that took place. It is difficult to see through that and establish what the facts were.
Furthermore, such a situation works to the disadvantage of the accused. The accused might have the ability to produce an irrefutable alibi if he or she has the opportunity to do so within a few weeks or months of the events complained about taking place, but it would be impossible in most cases to produce that alibi if there is an interval of 10 or 12 years between the two events. This works to the disadvantage of the accused in a way that is worrying.
The committee has taken note of this danger and it has tried to produce a remedy—a rather extraordinary remedy—which, if I understand it correctly, is as follows: complaints will not be entertained more than four years after the events complained about took place, except that the commissioner may, if she wishes, override that and simply accept complaints that are older than that. The sub-committee would have the right to veto that decision by the commissioner.
This procedure is wrong in many respects. First, the commissioner should not be in the position of deciding on the rules of procedure, not on the basis of objective criteria but on the basis of her feelings about a particular case—ad hoc, ad hominem and ad feminam. That is not the way in which due process works. I am concerned about that. We should have a full statute of limitations—we have a half-statute of limitations here—and it should be quite clear that complaints that are made, let us say after four years, because that is the figure that already exists, will not be entertained on any basis.
The thing that concerns me most is that, although there are no objective criteria for deciding when you can accept a complaint after the four-year deadline, the commissioner in this case set out the reasons why she felt she should override the four-year limit which normally applies and accept the complaint, as she has done. The reasons she gave are on page 19 of the document before us. The relevant part, which is of great concern, states:
“There are exceptional circumstances that justify an investigation being conducted in accordance with paragraphs 119 and 120”.
That is the paragraph which provides for the possibility of overriding the four-year limit. It continues by referring to,
“the current concern of Parliament to deal with sexual misconduct by its members … the publicity given to endemic sexual misconduct and abuse of power in many fields of work”.
The report goes on in that respect. This is of deep concern to me because the duty of the commissioner and the committee in a case like this is a single one. It is for them to do their best to establish the guilt or innocence of the accused and to set out the reasons for coming to their conclusions so that the House and the wider world can understand them. Other extraneous considerations—public policy, public opinion, current fashion and the agitations of the press—are all completely irrelevant. They should not begin to come into any of these considerations at all—and I am very worried indeed that in this case they did.
The Cross Benches!
My Lords, I practised at the Bar for 11 years a long time ago, but I have no experience of criminal law and I do not claim to have any special expertise. I think that noble Lords should look at this case from the point of view which has been put by the noble and learned Lord, Lord Woolf: has the person complained about had a fair crack of the whip?
There were some cases recently where a court said that statements made by someone bringing forward the accusation of rape were completely contradictory to the accusation—not only the statements but also the behaviour of the person making the accusation were quite inconsistent with her original charge. This was clearly an instance where the cross-examination of the person making the charge was essential. Looking at it from the point of view of whether my noble friend Lord Lester had a fair crack of the whip, can anyone doubt that there should have been a cross-examination, in this case of the accuser, of her reaction to the production of the books, how much she admired him, how on another occasion she asked after his health and had sent “love and kisses”. According to one witness, she behaved in a manner that suggested great friendliness for the accused some time later.
It is highly appropriate. In those cases there was a complete inconsistency between the behaviour and statements after the event which conflicted with the accusation made. The convictions were quashed. Can anyone really argue that if there had been the possibility of cross-examination of the witness about the kind of examples which the noble Lord, Lord Pannick, gave in his original speech—the confessions of a very close relationship with the defendant—that sufficient doubts would have been raised for the charge to be dismissed?
I add my support to the amendment in the name of my noble friend Lord Pannick. Having spent nine years investigating allegations against police officers, including allegations of serious sexual harassment by chief constables, I am very aware that process is absolutely everything. I remember that time and again I would be completely persuaded by allegations that would appear on my desk. They were obviously true, were they not? However, further down the line, under cross-examination, those very persuasive allegations crumbled to sand.
Our process is either faulty or it is open to misinterpretation; my inclination is to think that it is open to misinterpretation. That is because cross-examination is clearly appropriate where serious allegations are being made with very serious consequences for the person complained against. I hope therefore that my noble friend Lord Pannick will test the opinion of the House. I hope too that noble Lords will support the amendment in order to make it clear that this House stands for the highest possible standards of fairness and justice.
I want to draw the attention of the House to my experiences as a director of a major self-regulatory authority, the Securities and Futures Authority, which used to regulate a major part of the financial community of the City of London. When you are investigating things like the collapse of Barings Bank, issues of money and reputation rank very high indeed. There are some lessons which can be read across to the difficult, problematic and painful case that we are discussing today.
I should make it clear that I am not a lawyer and I do not know the noble Lord, Lord Lester of Herne Hill, although obviously I have seen him in action in your Lordships’ House. I know of his reputation both here and in the wider judicial field. I have played no part in any of the committees that have looked into this case. I want to focus on the process and, following up on the point made by the noble Baroness, Lady Meacher, draw on the experience of the Securities and Futures Authority when it was trying to regulate the City of London. Before the Financial Services and Markets Act 2000 was passed and we got the statutory framework that we now have, there was a self-regulatory framework in which practitioners made up the governing body. Given that, we felt particular stresses and strains, some of which we are seeing reflected in the contributions to this debate in your Lordships’ House.
As a body, we always struggled with the accusation that we were too close to the people we regulated. As newspapers would put it very disobligingly, we let our friends off over lunch. To fend off those accusations, we ensured that independent individuals with no links to the financial services community formed part of our panels and our body. One of them was the noble Lord, Lord Eatwell, a distinguished Member of your Lordships’ House on the Benches opposite, but he is not in his place today.
The issue that was always put to us by our legal advisers was that in a disciplinary case, we could never change the rules. The rules were the rules. They might have needed updating and they might even have been inadequate, but they could not and must not be changed in midstream because of course the authority, which made its own rules, would inevitably suffer a stupendous loss of public confidence if an “unpopular” decision was being reached and the rules were subsequently changed, perhaps to achieve a different result.
My question for the noble Lord, Lord McFall, when he comes to wind up the debate, is this. Can he assure the House that the rules now in play were followed to the letter and that no potential avenue which might have advantaged the case for the noble Lord, Lord Lester, was denied to him? If he can give that undertaking, I will have to say to the noble Lord, Lord Pannick, that while I understand his case for change and I have read his article in the Times, and I acknowledge how powerfully he and others have argued their case in this debate, that surely must be a discussion for another day. If we were to accept the amendment and therefore put aside our rules in this case, it is all too easy to see the accusation that we, too, are letting off our friends over lunch.
To accommodate the noble Lord, Lord Foulkes, I shall be very brief indeed. I have read the report from beginning to end and I am extremely uneasy about convicting a fellow Peer for misconduct with that standard of investigation.
I am not against women coming forward—indeed, I encourage it—but to be balanced, the accused person must be given the right to answer fairly and be investigated. That is justice. I fear that if we do not support the amendment of the noble Lord, Lord Pannick, the noble Lord, Lord Lester, will be expelled from this House without having had the opportunity to have the accuser’s evidence forensically tested. In the practice in which I operate, which is not a criminal practice, written statements are put in the bin unless the person who wrote them goes in the witness box to stand for them and be cross-examined on them. This is a very serious allegation. We should rethink whether we are proud of the way it has been handled and whether it really is justice.
My Lords, I thank noble Lords for their 18 contributions. Some of them made points that we consider absolutely valid; I think the noble Lord, Lord McNally, made that very point.
My noble friend Lord Hodgson of Astley Abbotts made the point that rules are rules. I can say definitively that the rules are the rules and that we and the commissioner adhere to them. Noble Lords will see that the first page of our code of conduct states:
“The following Code of Conduct for members of the House of Lords was adopted by resolution on 30 November 2009 and amended on 30 March 2010, 12 June 2014, 25 February 2016, 9 February 2017 and 3 April 2017”.
No one who suggested that the rules are flawed came here with any suggestions to change them. We in the sub-committee and the committee observed the rules faithfully.
A point was made about the commissioner freelancing. The commissioner went to the sub-committee and specifically asked to investigate this case. That sub-committee is chaired by an eminent judge, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The noble and learned Lord, Lord Irvine of Lairg, was on that committee. Permission was given to the commissioner, so she followed every rule of this House.
I have been the chairman for two years and this is the first case I have had; I undertake faithfully to write my noble friend on that question. That is not a problem.
My noble friend Lady Shackleton and the noble and learned Baroness, Lady Butler-Sloss, made a point about testing the evidence. The commissioner covered that point in the committee’s report, saying:
“I am not entirely sure what Lord Lester means by cross-examination … but if he means testing the evidence where there is a challenge or a good reason to do so, then the report shows that I did this, throughout the process, and where I did not, I gave my reasons”.
She refers to paragraphs 156 and 93 to 152 of her report. The evidence was tested very carefully.
The noble and learned Lord, Lord Woolf, said that the rules are not fit for purpose. Following his chairmanship, the noble and right reverend Lord, Lord Eames, looked at that point in the leader’s report and used the experience of the noble and learned Lord, Lord Woolf, so that they could take account of the problems. They did that by establishing an independent commissioner.
Other points have been made about the process being reviewed next week when the committee will meet, following the Cox report in the House of Commons. We will look at bullying and harassment. We want to ensure that the system is more accessible to complainants but there is no current suggestion to adopt a procedure involving cross-examination. If any Member wishes to put that to the committee for consideration, we are here to listen to all the evidence.
My Lords, in what sense is cross-examination not part of an inquisitorial system? It is perfectly possible under such a system. We are looking at precedents in the United States where a lot of students are being accused of sexual misconduct in universities and university tribunals have been taken to court for their procedures. It is quite clear that the American courts expect an inquisitorial procedure under which the fact-finder questions the evidence.
We could be dancing on a pinhead here in that sense. The main issue, as outlined, is the testing of evidence. I take comfort from the fact that the sub-committee included eminent legal people such as the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Irvine of Lairg. They are as distinguished as they come. I take great comfort from the fact that of the 14 members of the Privileges and Conduct Committee last week, both the noble and learned Lords, Lord Hope and Lord Mackay of Clashfern, gave evidence. If I were looking for legal representatives, those four would always be in my first team; they would never be on the subs bench. I have every confidence in them.
I listened to the noble and learned Lords on that issue. They were satisfied that the evidence was tested thoroughly, which is as good as anything. I took comfort from what they said. Having listened to the points that have been made, I hope that Members will uphold the internal disciplinary procedures relating to the code agreed by this House way back in 2009. Those processes have been in place for many years; we have used them many times for the investigation of allegations. The Members who spoke in favour of the amendment of the noble Lord, Lord Pannick, have not previously criticised or sought to change those processes even though they were used to investigate other serious allegations that led to suspensions for four Members in 2009, as I mentioned in my opening speech. As other members of the committee have said, we cannot criticise the independent commissioner for her processes.
My Lords, I understand that if the verdict is passed that the Motion in the name of the noble Lord, Lord Pannick, should go through, the noble Lord, Lord Lester, could not appeal to the UK courts. Could he appeal to the Strasbourg court instead or would he be denied justice everywhere?
I am being told that I could give an answer but I am advised that it is not a matter for me to refer to. In his comments on 20 May 2009, the noble Lord, Lord Lester, took the issue of the European courts into consideration in looking at the case and appeals of the four Members accused of taking money from the Sunday Times. It is good to look at that.
As I mentioned, other committee members said that we cannot criticise the independent commissioner. She followed the procedures set down by this House and kept under review by the committees of this House, not least the sub-committees. I invite the House to reflect on why we have an independent commissioner. We have one to build public trust in the House as an institution and because one of the principles of natural justice is having an impartial decision-maker. The House deliberately delegated active investigation and assessment to an independent commissioner; it would be wholly wrong for the House to seek now to substitute the commissioner’s conclusions with its own.
We are here to listen to Members’ views, which I said I would take in. The sub-committee made its declaration. By the way, we used our judgment as a committee, because the sub-committee recommended expelling the noble Lord, Lord Lester. We modified that and made it a suspension. Those judgments were made by the sub-committee and the Privileges and Conduct Committee. We are here to listen to points of view. I shall take forward in the committee next week the comments that have been made today so that we can add to and refine our processes. That is the essence of this.
My final remark is that we must not forget the complainant in all this, as the noble Baroness, Lady Hussein-Ece, said. This is a woman who reported a series of highly distressing events that have gone largely unmentioned, other than by the noble Baroness, today. She has been criticised in some parts of the media.