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Privileges and Conduct - Motion to Agree

– in the House of Lords at 3:08 pm on 30th April 2019.

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The Senior Deputy Speaker:

Moved by The Senior Deputy Speaker

That the Report from the Select Committee on Independent Complaints and Grievance Scheme: Changes to the Code of Conduct (4th Report, HL Paper 335) be agreed to.

Photo of Lord McFall of Alcluith Lord McFall of Alcluith Chair, Freedom of Information Advisory Panel (Lords), Chair, Hybrid Instruments Committee (Lords), Chair, Liaison Committee (Lords), Chair, Committee for Privileges and Conduct (Lords), Chair, Procedure Committee (Lords), Chair, Committee of Selection (Lords), Chair, Standing Orders (Private Bills) Committee (Lords), Chair, Sub-Committee on Leave of Absence, The Senior Deputy Speaker

My Lords, the fourth report from the Committee for Privileges and Conduct, Independent Complaints and Grievance Scheme: Changes to the Code of Conduct, has its genesis in the autumn of 2017 when allegations surfaced in the media about inappropriate behaviour and a culture of bullying, harassment and sexual misconduct at Westminster. A great deal of work has been done since then by politicians, officials and employee organisations on a cross-party and bicameral basis. This led to a new independent complaints and grievance scheme for Parliament, including a behaviour code which sets out the standards of behaviour expected of everyone working on the parliamentary estate.

The House of Lords Commission agreed that the independent complaints and grievance scheme, or ICGS, and the new behaviour code,

“would meet the clear need for a new approach to dealing with bullying, harassment and sexual misconduct both on the Parliamentary Estate and in the course of parliamentary duties elsewhere”.

The Lord Speaker, the chair of the commission, asked the Sub-Committee on Lords’ Conduct to consider how to integrate the ICGS with the Code of Conduct for Members of the House of Lords, the Guide to the Code of Conduct and the Code of Conduct for House of Lords Members’ Staff; and how the proposed independent reporting and investigatory service can best sit with existing procedures for investigating breaches of the codes.

That is the task we were given. The report before the House sets out proposals for amending the Code of Conduct, the guide to the code and the code of conduct for Members’ staff to incorporate the requirements of adherence to the behaviour code. These proposals are the result of extensive and detailed work by the Sub-Committee on Lords’ Conduct, supported by the noble Baronesses, Lady Anelay of St Johns and Lady Donaghy, as co-opted members, and subsequently by the Privileges and Conduct Committee. We also consulted Members in February and early March. The results of that consultation have informed our proposals.

There is a clear need for specific and appropriate processes for reporting and investigating complaints of bullying, harassment or sexual misconduct. Those processes must work fairly and effectively for Members and complainants, and provide appropriate support for both. Those processes must draw on the growing evidence base on best practice for addressing such behaviour. The package of changes set out in the report and the changes to the codes of conduct in the appendix to the report represent a significant step towards achieving that.

I am sure that noble Lords will have read the report in some detail, but it may help the House if I set out the key proposals. The Code of Conduct should incorporate the behaviour code and make explicit that behaviour by Members or their staff which constitutes bullying, harassment or sexual misconduct is a breach of the code. The requirement to comply with the behaviour code will be retrospective to 21 June 2017—the start of the current Parliament. Complaints of bullying or harassment can be made to independent helplines, as well as to the commissioner, and complainants and Members can be signposted to sources of advice and support. This requirement will apply to Members who are on leave of absence or disqualified if they are on the Parliamentary Estate or using the facilities of Parliament.

The existing requirement that a Member should act always on their personal honour should be widened to cover a Member’s performance of their parliamentary activities, as well as their parliamentary duties. This wider scope will apply retrospectively.

A new conduct committee should be appointed to take on all conduct functions of the Privileges and Conduct Committee and the Sub-Committee on Lords’ Conduct, both those relating to bullying and harassment and those relating to other breaches of the Code of Conduct. It will have lay members with full voting rights to work alongside the Lords members to hear appeals and oversee the Code of Conduct. This will bring more independence and a valuable external perspective to the committee’s work.

The conduct committee would act as the appeal body for the Member who was the subject of a complaint and, in cases of bullying, harassment or sexual misconduct, for the complainant. Appeals would be restricted to judicial review-type grounds.

The independent House of Lords Commissioner for Standards should continue to investigate complaints to establish whether there has been a breach of the codes of conduct. In cases of bullying, harassment or sexual misconduct, she will have the option of being assisted by independent investigators appointed by Parliament for this purpose.

The role of proposing a sanction should be carried out by the commissioner, rather than the conduct committee. This is another step forward in making the process more independent of Members.

Reports from the conduct committee relating to the behaviour of individual Members, including those imposing sanctions, should be decided by the House without debate. We recommend a new Standing Order to make that clear.

There are a number of proposals intended to provide a process better suited to dealing with complaints of bullying or harassment. These include removing the expectation that a complainant should raise the complaint with the Member in the first instance, and new provisions on protecting the identity of the complainant and the Member complained against.

This report is not intended to be the final answer. There are Members who wish us to go further and faster in delivering a system more or wholly independent of the House. That is for the proposed new conduct committee to consider, particularly in light of the report of the independent inquiry into bullying and harassment in the House of Lords, led by Naomi Ellenbogen QC, expected in July. These proposals are an important step towards improving our processes and delivering appropriate independence for dealing with complaints of bullying and harassment. They will keep the House of Lords in step with the new approach taken across Parliament. I hope that the House will support them. I beg to move.

Photo of Viscount Hailsham Viscount Hailsham Conservative 3:15 pm, 30th April 2019

My Lords, as some noble Lords will know, last December I participated in the debate on the report on Lord Lester. Since then, I have submitted a very full memorandum to the committee chaired by the noble Lord who just introduced this Motion, so my views are available to anybody who wants them. Therefore, I am sure I will be forgiven if I speak very briefly and confine myself to but three issues.

First, the fourth question in the report, and the one left over, is: should we make the process for investigating and determining complaints against Members more, or entirely, independent of the House? My answer to that is an emphatic yes. Perhaps I might make a declaration and say that for the last nine years or so, I have been exclusively concerned as a legal practitioner as a legal adviser to the regulatory panels that regulate the conduct of doctors, nurses, midwives, social workers and healthcare professionals. Your Lordships might think that I am a bit set in my ways, but they certainly inform my conclusions.

I entirely accept that our procedures must not deter complainants from coming forward, but we must not put in place a process that is unfair to a respondent Peer or one that does not accord with the principles of natural justice. An adverse finding against a Peer is a very serious matter for that individual. Inevitably it will cause damage, possibly irreparable, to reputation. The sanctions, expulsion or long suspension should be viewed in the same light as sentences imposed by criminal courts, or the suspension or strike-off orders imposed by the regulatory authorities.

Your Lordships will know that most regulatory authorities operate under procedures established by Parliament and supervised by the appellate jurisdiction of the courts. In summary, the processes are very similar to those that prevail in the courts and, in particular, require proper discovery of evidence, the entitlement to full legal representation and the hearing and cross-examination of all relevant witnesses. I believe that any process we create must be similar to the processes we require of all the regulatory regimes with which I am associated.

My conclusion is that the role of the commissioner should be confined to investigating the complaint, establishing whether there is a prima facie case and regulating the interlocutory procedure. The commissioner should be the prosecuting authority but not the ultimate judge of fact or the decider of sanction. The determination as to fact and the recommendation as to sanction should be matters for an independent tribunal presided over by an experienced legal practitioner. The respondent Peer should be entitled to legal representation, and that representative should be entitled to cross-examine the relevant witnesses. I do not agree with the rejection of the right of cross-examination, as set out in paragraph 45 of the report.

I turn secondly and briefly to the new conduct committee. It is essential that, from the initial hearing, there should be a proper right of appeal and I agree in substance with the provisions set out in paragraph 53 of the report. I accept that the powers of the committee should be essentially the same as those that arise in judicial review and should not, in the generality of cases, involve a rehearing of the facts. I would, however, give the committee an overarching power to quash a finding on the facts, where the interests of justice so require it. However, I disagree with the report’s recommendation on the composition of the committee. The lay element should be in the majority. All members should be voting members but the committee should be chaired by a senior legal figure, not necessarily one serving in this House.

Thirdly, I want to address briefly the role of this House. That is identified as the second question in the report, about whether this House should play a wider role. To that I answer an emphatic no, for two reasons. First, it is difficult to avoid a conflict of interest. It is thoroughly unseemly for Peers who know the respondent Peer to intervene on his or her behalf. Secondly, and differently, the committee or independent tribunal that first considered the matter will inevitably know a great deal more about the facts and the documents than any Member of this House could reasonably expect to.

Our stated objective, as set out in the guide on conduct and in the report itself, is to ensure that allegations made against Members are handled in a way that accords with the principles of natural justice and fairness. I do not believe our present procedures achieve that. My conclusion is that we should do away with the inquisitorial system presently in place and adopt a system similar to that which Parliament has imposed on all the regulatory regimes with which I am familiar. I do not recognise any reason of principle or procedure for according to Members of this House a different—I would say less fair— system of regulation than that which this Parliament has imposed by law on all professionals with whom I have worked, and within all the jurisdictions with which I am familiar. Accordingly, I hope we will look again at these procedures. I see that this is contemplated in the report introduced by the noble Lord, Lord McFall, and I welcome that fact.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, the reforms proposed by the committee, as helpfully outlined by the Senior Deputy Speaker, will be a distinct improvement on the current system. No one who participated in the debates in November and December on the conduct of Lord Lester, or who listened to those debates, could think it was a satisfactory way for the House to assess the conduct of one of its Members. I entirely agree with the comments of the noble Viscount, Lord Hailsham.

The committee is, in my view, right to recognise that there should be a new conduct committee with lay members to hear appeals from the commissioner and to vary any sanctions. My primary concern about the report is that it does not secure a sufficiently independent determination of complaints. A new conduct committee consisting of five Members of the Lords and four lay members will simply not command public confidence because it is not independent of the House. It is easy to predict what will happen if the commissioner makes a finding of a breach of the code and the new conduct committee then overturns that decision by a narrow majority, with all or most of those members who are Lords voting in favour of the relevant Peer. It is inevitable that the House will be strongly criticised and that its reputation will suffer. It will inevitably be said that the Members of the Lords are looking after one of their own. The very fact that the Members know that there would be such criticism will make it very hard for them to assess fairly the conduct of the relevant Peer and exonerate him or her if they think it right to do so.

The only system that can command public confidence and be fair, to both the complainant and the accused Peer, is a wholly independent one with appeals from the commissioner going to a panel composed exclusively of lay members with, I suggest, a retired Court of Appeal judge as the chairperson. I entirely recognise that some Members of the House will find it very difficult to give up their power in this way, but we need to do so if our complaints system is to command confidence and respect.

Paragraph 12 of the report mentions, as did the Senior Deputy Speaker, that Naomi Ellenbogen QC has been appointed to advise on bullying and harassment and is expected to report this summer. She is a much-respected figure in this field and paragraph 21 says that it would be prudent to await her report before deciding whether there is a need for greater independence on the conduct committee. I am happy to go along with that and very much hope that Ms Ellenbogen will see the force of the case for independence and report accordingly.

I will comment briefly on two other matters. The first is the role of cross-examination, mentioned by the noble Viscount, Lord Hailsham. Paragraph 45 of the report says that cross-examination is unnecessary because the commissioner,

“can undertake a highly effective and rigorous testing of the evidence in a less confrontational style”.

It is exceptionally difficult for the same person to be both inquisitor and judge. There may not be many of them, but in cases where the commissioner has to decide who is telling the truth, her difficult task—and it is difficult—would be much easier if she listened while someone else asked the penetrating questions. The committee does not appear to have considered another solution to this problem. In these cases, where the commissioner has to decide who is telling the truth, she should have power to appoint independent counsel to assist her by asking questions of both the complainant and accused Peer, not in a hostile manner but in one that tests the evidence. The process of appointing counsel to the inquiry is a familiar means of testing evidence in other contexts. It works well and some Members of this House have used it when serving as chairmen on inquiries. I hope Miss Ellenbogen will address this point.

Finally, I mention the role of lawyers, as did the noble Viscount, Lord Hailsham. I declare my interest as a practising Queen’s Counsel. I find it very disappointing that paragraph 55 of the report seeks to defend the existing prohibition on counsel being appointed by the accused Peer, or the complainant, to speak on his or her behalf before the conduct committee. We are concerned here with decisions that can end a person’s career—that can damage, sometimes destroy, reputations built up over a lifetime, not just for the accused Peer but for the complainant as well. It is rare for a Peer or complainant to be able to represent themselves effectively in such circumstances, given the inevitable emotional strain on them. The task of the committee would be assisted by having the issues presented by a trained professional, rather than by the Peer or the complainant themselves. I hope that Naomi Ellenbogen will advise the committee that the fairness and efficiency of an appeal will be promoted if those involved can appoint counsel to make submissions on their behalf.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 3:30 pm, 30th April 2019

My Lords, I hope that a non-lawyer can get a word in edgeways, because there are other issues apart from all these legal issues raised incessantly by lawyers, and we have an opportunity as well as a right to raise our own issues. First, however, I commend the work done by the Senior Deputy Speaker and by the members of the committee, who have done a very difficult job very well indeed. I particularly thank the noble Baroness, Lady Anelay, and my colleague and noble friend Lady Donaghy, who has discussed this matter with me, for their excellent input.

There are 101 questions arising from the report and I will raise only one—but it is an important one. It has nothing to do with the legal processes—I will leave that to the lawyers. What worries me is that we are looking at this on a bicameral basis, as if everything that applies to the House of Commons applies equally to the House of Lords—and that is not the case; it is a very different situation here. In particular, there is one important difference I want to draw the Senior Deputy Speaker’s attention to. It relates to paragraph 59, which mentions, as the Senior Deputy Speaker mentioned,

“House of Lords Members’ Staff”.

What is meant by that? I would like to have the opportunity to employ people and I certainly would not bully them, harass them or get involved in any sexual activity with them. I would like to be able to do that—

Noble Lords:

Oh!

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

No, no—I would like to be able to employ them, not to do that. These Cross-Benchers are on the ball; they pick things up quickly.

I was a Member of the House of Commons for 26 years. We got a special allowance to employ staff in our constituency and in the House of Commons. There are arrangements for employing and paying staff and structures to enable MPs to do that. That is not the case in the House of Lords. So what is meant by, “House of Lords Members’ staff”? A number of Members of the House of Lords have people working for them, but they are paid for by outside bodies, whether it be a film company, an organisation to which they give professional advice or, indeed, their law firm: they are not employed by the House of Lords. Can the Senior Deputy Speaker indicate whether these staff are covered if they are employed by someone else? It is not clear in any way from this whether staff who come in to help Members of the House of Lords but are employed by some other organisation are covered. Some people employ interns. Are interns covered by this? Are they considered to be House of Lords Members’ staff? It needs to be clarified. What about volunteers? I have an excellent volunteer who comes regularly to help me. Is he to be considered under “House of Lords Members’ staff”? Is he covered by this? None of this has been dealt with.

The desire to extrapolate from what happens in the House of Commons to what happens down here has been too strong, and a number of anomalies have arisen. I have raised one of them that needs to be clarified and I hope that there will be answers to these questions—if not now from the Senior Deputy Speaker, certainly before we get the final report from the commissioner, Naomi Ellenbogen. I hope that, before we approve anything finally, these kinds of anomalies and questions will be answered—and I am grateful to the lawyers for allowing me to squeeze in between them.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

Perhaps I may squeeze in myself after the noble Lord.

The proposed new code is a considerable advance on the existing procedures. It is an excellent proposal that a complaint of bullying, harassment or sexual misconduct should be investigated by independent investigators. The role of the commissioner should be to receive their report and, in the light of that report and any material provided by the Member concerned, to determine whether there are unresolved factual issues. If there are, she may decide formally to question the parties and their witnesses orally in separate interviews or—here I very much agree with the noble Lord, Lord Pannick—to appoint counsel to the inquiry to assist her in that task. If it is a difficult or an extremely sensitive task, it would be appropriate for her to decide to do that.

I regret that the report remains tied to the concept that the offence to be investigated is a “breach of personal honour”. If ever a phrase is redolent of mothballed ermine, that is it. Paragraph 37 explains that,

“the term ‘personal honour’ is ultimately an expression of the sense of the House as a whole as to the standards of conduct expected of individual members”.

It is,

“subject to the sense and culture of the House as a whole”,

which, the report comments, “change over time”. It is somewhat curious, therefore, that the House appoints a commissioner who is by definition independent of the House and has never had the opportunity to imbibe its culture—to breathe in the mothballs—in order to determine whether a Member is in breach of his personal honour. Further, it is equally curious that an appeal should lie to a panel which contains four lay members who are in precisely the same position. If misconduct is alleged against a Member, any charge should set it out in plain language, specifying the time, the place and the date. The findings of the commissioner should establish whether that precise charge has been proved.

I welcome the introduction of four lay members with full voting rights to join the five Peers proposed for the new conduct committee. However, when the conduct committee sits as an appeal panel to hear an appeal brought by a Member, it is my view, along with that of the noble Viscount and the noble Lord, Lord Pannick, that the lay members alone should determine it. Peers will have personal knowledge of the Member and may well be thought, rightly or wrongly, to be subject to unconscious bias one way or the other because of friendship, enmity, political views or personal dislike. In any other tribunal or court, a tribunal member, magistrate or judge would undoubtedly recuse himself or herself if he or she knew the party concerned personally.

The report itself does not suggest that it is the final word on the topic. As noble Lords have said, paragraph 21 recommends that the conduct committee should consider further the question of whether the process for investigating and determining complaints should be more or entirely independent of the House, in the light of the recommendations to be made by the Ellenbogen inquiry.

There is no consideration in the report of the process and procedure of an appeal hearing. In the Lester case I pointed out that the commissioner had herself adopted the role of respondent to the appeal, and referred to herself as such in correspondence. Although she was not called before the Conduct Committee, she provided the committee with a point-by-point refutation of Lord Lester’s case, in support of her own decision. I suggested that that was pretty unique for a person to be involved in an appeal against their own decision. It was never made clear whether she stepped in as a respondent to the appeal by invitation of the committee or on her own initiative.

Some thought should be given to the nature of these appellate proceedings, and a proper process agreed. The appeal panel should also undoubtedly have discretion to permit legal representation for the Member on the appeal, having regard to the complexity of the case, and other factors such as illness. It is positive that the report states that the grounds of appeal should include that the commissioner was plainly wrong in her finding and that significant new evidence has emerged, but it is not clear at the moment whether such grounds are permissible under existing procedures.

Finally, I welcome the decision not to debate the outcome. I thought the proceedings we held were an embarrassment. In my view, the final determination of a complaint should simply be reported to the House, not formally made a decision of the House. It should not be regarded as a proceeding in Parliament, and thereby caught by the paragraph in the Bill of Rights of 1688, which carries the heading “Freedom of Speech”:

“That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament”.

Every disciplinary process such as this in every other field of life is ultimately subject to the overriding jurisdiction of the High Court, and it would be healthy to make the disciplinary process of Parliament subject to proper judicial scrutiny.

The report is a significant advance, but it is not, as the report and the Senior Deputy Speaker recognise, the end of the story.

Photo of Lord Evans of Weardale Lord Evans of Weardale Crossbench

My Lords, I declare my interest in the register as the chairman of the Committee on Standards in Public Life. However, I speak on my own account. I very much welcome the report from the Privileges and Conduct Committee, which seems to be a significant step forward. But, as the Senior Deputy Speaker said, it is a step forward rather than the final step in the whole process. In particular, the increased independence that will be part of the construction of the conduct committee is extremely important. I share the view of the noble Lord, Lord Thomas of Gresford, that we need to continue in that direction and that a minority position for independence may not be satisfactory, particularly when difficult cases are being adjudicated, because public opinion on these issues is moving forward and we clearly need to be in step with it. The proceedings in this House before Christmas were clearly not in step with it, and I am therefore grateful that we will not be revisiting that episode, which I think was probably discreditable to us all.

On the question raised by the noble Lord, Lord Foulkes, about the bicameral nature of this, we need to recognise that this is a complex series of interlocking pieces of process. Various pieces of process are happening in your Lordships’ House, and a variety of pieces of procedure are happening in the other House. We must bear in mind that this is a totality. We cannot entirely separate what happens here from what happens there, not least because the House of Commons, the other place, is considering the question of non-recent conduct, which is likely to extend back considerably further than is currently proposed in your Lordships’ House. There is a difference there, but of course there is movement between the two Houses, so we may find that procedures in the other place impact on Members here. We need to bear in mind that those are linked issues and, I believe, in the public mind, they would be seen as part of the same issue. Therefore, we need to bear in mind how they are being played at both ends. At the moment, there is of course a considerable difference between the procedures here and those in the other place, even though there is some movement in the direction of co-ordination between the two.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I agree with what the noble Lord says about working together and agreeing a bicameral core operation. However, things are different. To illustrate the public mind, I was sitting in my office in Millbank House. The phone rang, and someone from a corporate office said, “Could I speak to Lord Foulkes’s diary secretary?”. I said, “You’re speaking to him”. They think we have a whole panoply of members of staff working for us. We need to get over the point that that is not the case.

Photo of Lord Evans of Weardale Lord Evans of Weardale Crossbench

I entirely take the noble Lord’s point and would welcome having a diary secretary myself, but I do not. It is clear that we do not have identical working procedures at both ends of the Palace. Nevertheless, the principles are the same. We also need to recognise that if there are changes in the procedures in another place, we need to consider how they might impact here and vice versa. We need to make sure that there is visibility in the procedures at both ends. It is not clear to me that there has been quite as much visibility in the recent period as one might from the outside have expected.

I welcome the fact that the new conduct committee will look at and take forward the work that has been done by the Privileges and Conduct Committee so far. I think that we are still some way from reaching a perfect system; I suspect that we will never reach one because there will always be changes both in public expectations and in procedures that need to be reviewed. However, we have been provided with a helpful step in the right direction and I look forward to the new procedures being put in place.

Photo of Lord Woolf Lord Woolf Crossbench 3:45 pm, 30th April 2019

My Lords, I should begin by referring to my interests in the register and stating that I took part in the debates relating to Lord Lester, to which I shall refer in a moment. In that regard, I am pleased to be able to say that I consider Lord Lester a personal friend.

Today we have taken a new look, rightly, at a subject of considerable importance: how this House proposes to tackle conduct that has apparently become more prevalent recently than it was in the past; namely, instances of individuals in a position of power taking advantage of that power to bully, harass and commit sexual misconduct involving individuals in a less powerful position.

It is important that the House should act in accordance with the rule of law and is an example to other institutions—here, I pay recognition to the improvements recommended in the report which we are considering. Undoubtedly, those who had that responsibility have given careful attention to the problems and put forward what they regard as the best proposals that at this stage it is possible to make. Those proposals are certainly to be welcomed as an improvement.

I say that remembering that Lord Lester was successful in the first debate in relation to his conduct but that in the second the position was reversed. That perhaps illustrates the difficulties involved. I am not in the least surprised that those who have spoken before me have made comments which could be regarded as being critical of what is in the report but at the same time have felt it possible to welcome what is now proposed.

After the second debate, I was left with the uncomfortable feeling that Lord Lester did not receive the fair treatment to which he was entitled. In saying this, I have no insight as to his guilt or otherwise. However, irrespective of his position, he remained entitled to a procedure which was fair. Although cross-examination was not an essential requirement in the circumstances in which he was involved, the fact remains, as others have said, that without cross-examination it is very difficult and sometimes impossible to ascertain where the truth lies when two people give different accounts which are wholly unsupported in either case. I was therefore delighted that the House decided to hold an inquiry conducted by an eminent QC into the procedures which should apply in this type of case.

I was also pleased that the House thought it proper to conclude a process of consultation, although I was surprised that it was restricted to four topics, as noble Lords will see from the top of page six of the report. However, the report also makes it clear that if comments were made outside those four headings, they would be taken into account; indeed, they were. I hope that when Miss Ellenbogen’s report is made available in the summer, as expected, the House responds to it appropriately.

I turn now to the proposals contained in the committee’s report. Like other noble Lords, I wish to identify the ones I regard as particularly important, such as those amending the Code of Conduct and the guide to the code. I emphasise that paragraph 6 of the introduction to the report states that the proposed changes will include,

“a new set of processes for investigating complaints”,

of the type with which we are concerned; namely,

“bullying, harassment or sexual misconduct”.

Paragraph 29 on page 10 states:

“We recognise the clear need to implement specific and appropriate processes for reporting and investigating complaints”,

of the type with which we are concerned. These processes are intended to,

“work fairly and effectively for both members and complainants and provide appropriate support for both … and to draw on the growing evidence base on best practice for addressing such behaviour”.

The proposal I regard as of the greatest importance is that, where appropriate, the commissioner should be supported by a team of independent investigators appointed by Parliament, and that the commissioner may delegate any of her investigatory functions to them. The significance of this proposal—I believe I share the view of the noble Lord, Lord Thomas, here—is that it will produce a situation similar to that regularly adopted in public inquiries to appoint a counsel to the inquiry. A single commissioner acting alone may find it almost impossible to find the truth in this sort of case. The report does not indicate who the independent investigators will be, nor the qualifications they will have. However, I am prepared to rely on the fact that the commissioner is responsible for conducting a full investigation on behalf of the House, and that the House will ensure both that those who are appointed are fully qualified to do so and that the truth of the complaint can be assessed quickly. If I am right in making this assumption, my greatest reservation about the procedure in its unamended form is largely met because, for example, legal advisers can assist in conducting cross-examination if they wish to do so. I cannot see anyone objecting to questioning in that form.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I wonder whether the noble and learned Lord understands that none of the investigators will be lawyers.

Photo of Lord Woolf Lord Woolf Crossbench

I am grateful to the noble and learned Baroness for drawing that to my attention but it is not stated in the report.

Photo of Lord Woolf Lord Woolf Crossbench

Perhaps the Senior Deputy Speaker can confirm that. If that is the case, I suggest that it is a mistake; I hope that the investigators will be experienced. They may not have the particular qualifications of a barrister, but they may be familiar with legal proceedings and able to play a prominent part in the informal domestic forum I hope will exist in respect of these complaints. Even if they are not lawyers and they do not have previous experience, in time they would develop it by doing the very job that a lawyer often does. The important thing is that the commissioner should have skilled assistance because she is not meant to do everything herself. She should be able to delegate, as is proposed in the report.

The other matter I will refer to is the powers of appeal. As has been said, they are similar to those on judicial review. Those who have experience of judicial review will know, as I do very well, that it can be an excellent form of appeal, especially in respect of tribunals of the sort which are involved in investigating these complaints. The powers on judicial review are attuned to the purpose of ensuring that the role of justice is properly protected and it is of significance that reference to judicial review is made on the final page of the report. It is right that that should be so.

For the reasons I have indicated, I hope that this will mark a real improvement. I am sure that what existed before this report should not be allowed to continue any longer if that can be avoided.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

My Lords, I agree entirely with the final remarks of the noble and learned Lord. I always listen to the lawyers in this House. I have nothing against lawyers—indeed, how could I since I have been married to one for 49 years? I listen to him too. It is important that we are able to draw upon the expertise of lawyers across this House, and that has been the opportunity afforded to us today.

I was, as my noble friend on the Front Bench taking the place of the Senior Deputy Speaker for the moment has said, co-opted to the committee to support the discussions. Like the noble Baroness, Lady Donaghy, I did that to the best of my ability. We were not privy to any discussions about existing cases. I pay tribute to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his skill in managing what was a complex, significant and very sensitive discussion. As the noble and learned Lord, Lord Woolf, said, it is important that we do not continue as we are and that we take account of where the system has not worked to the best ability. That is because the best ability is a system that provides reassurance for those who wish to bring complaints against Members of this House and protection for Members of this House who do not, as I certainly would not, wish to face vexatious and unfounded claims made against us. That is a difficult challenge to face and I believe that the report before us takes a significant step forward in helping us to meet that challenge. It has already been mentioned that a report by an eminent QC is to be published this summer and that we would take account of it at that stage. We cannot predict its outcome. We can deal with what we have, and that is based upon our own experience and indeed the consultation which has taken place.

I would like to refer in a little detail to two matters, but since one of them, cross-examination, has been widely covered, I hope to be briefer than otherwise I might have been. The first matter concerns the behaviour code and what defines the behaviour that comes within it. Paragraph 35 of the report proposes a widening of the definition of activity that would fall within the code. The existing requirement says that,

“a member should act always on their personal honour”,

when it applies to a Member’s,

“performance of their parliamentary duties”.

This paragraph extends the requirement to cover the performance of “parliamentary activities”. I very much welcome it, because it would, for example, cover behaviour while parliamentarians are on visits overseas connected with these activities.

Since I ceased being a Minister over a year ago, I have been able to join other parliamentary colleagues on overseas study visits. On three occasions, I have been a member of Inter-Parliamentary Union visits. On each occasion, the British Group IPU has given absolutely clear directions on the importance of appropriate conduct and action that would be taken by the IPU in the event of inappropriate behaviour overseas. That guidance is given not only in print but verbally by the director of the IPU. That is good practice but, currently, if there were inappropriate behaviour, no action could be taken within our own rules here. I am therefore very pleased that paragraph 35 clarifies what comes within the behaviour code.

There has been much reference, both in discussions in December and subsequently in the case of Lord Lester and today, to what should frame the nature of our investigatory process; to whether it should be very much focused on a judicial process or have independence built into it but still reflect what has been the good character of this House. More generally, I support the proposals in the report, on the basis that they try to ensure there is fairness, as far as is practicable, in the system for reporting and responding to complaints on matters of conduct, but do so in a way that retains the investigatory approach rather than cross-examination. It is vital that those who believe they are victims of bullying, harassment or sexual misconduct can bring a complaint to the House without feeling that they will be at a disadvantage in what they will consider to be a power imbalance against them, or indeed Peers’ staff. Here, I very much reflect on what the noble Lord, Lord Foulkes, said about a definition of “Peers’ staff”; he was right to raise that matter.

I am particularly concerned about House staff—not those to whom the noble Lord, Lord Foulkes, referred. We must ensure that they are able to report breaches of the behaviour code without any fear of being automatically disbelieved or at risk of damaging their career. They deserve that respect, but I feel that their faith in our system has been undermined.

It is of course absolutely vital, however, that the respondent to a complaint—she or he—knows that the system adopted by the House means that best efforts will be made to discourage and weed out vexatious allegations. It is something I would not wish to be subject to, and I am aware of some of the prying questions that can be asked by people outside the House. That is part of being in politics; it is not part of a system of judging people’s conduct, where we need to get at as much of the reality of what has happened as we can.

No way of trying to elicit evidence can ever produce the perfect answer, unless there is an incontrovertible DNA sample. It is all a matter of testing evidence and being confident that those testing the evidence are doing so in as fair a way as possible. Cross-examination is not the only way to discern facts of events. It is often perceived to be hostile, even if not intended to be, and can be counterproductive. Over several years of sitting as a layperson on appeal tribunals on social security, and during 30 years of working as a volunteer in various capacities with Citizens Advice, I have seen the success of investigatory techniques. Through careful, cautious, sensitive but utterly determined questioning, those who are professionally trained can arrive at the information required to be able to give a fair judgment on what events have proceeded.

As has already been said, there are provisions in the report that provide the commissioner with additional resource to have access to those who can give advice, whether or not they are legally qualified.

We have within the report a significant way forward to ensure that we have confidence in ourselves to respond properly to complaints, for the public to have confidence in our procedures, and for the staff of this House and other staff to have confidence that powers will not work against them.

Photo of Baroness Deech Baroness Deech Crossbench 4:00 pm, 30th April 2019

My Lords, I declare an interest, having spent 30 years either supervising or carrying out complaints-handling as an independent adjudicator for students, for the NHS, for staff at Oxford University and regulating the Bar.

I agree with every word spoken by the noble Viscount, Lord Hailsham, and my noble friend Lord Pannick. I am afraid that the report, although well intentioned, is going in the wrong direction. I hope the House will suspend action on it until we receive the results of the further, and perhaps final, investigation by Naomi Ellenbogen QC. I say that because there is no doubt that in modern circumstances one has to have a totally independent outside investigation of complaints made in a body such as this, in the NHS, in universities, at the Bar or anywhere else like that. Therefore the committee should have at least a majority of lay members and preferably it should be 100% non-Peer. None of us wants to go again through the excruciating embarrassment and possible miscarriage of justice that occurred last December when we were looking into the case of Lord Lester.

I wish to raise a few questions on definition. First, the report needs to define natural justice. Lawyers take it for granted that everyone knows what natural justice is but that is not the case—even lawyers disagree—and it was in part the interpretation of natural justice that come to the fore when we discussed the case of Lord Lester at the end of last year.

Secondly, we need to know what is personal honour. Is it the same as bringing the House into disrepute or is it to correspond with the seven principles of good behaviour in public office? It is important that we remember the criteria on which Peers are appointed—at least Cross-Bench Peers—by the House of Lords Appointments Commission. They have to be vetted, sign up to, understand and abide by the seven principles—selfless, honest and so on—of behaviour in public life. We need to know exactly what is included in personal honour and whether it includes, for example, bringing the House into disrepute.

We also need to know exactly what is harassment and whether it includes racism. For example, a meeting could be held in one of the committee rooms in the House, hosted and organised by a Member of the House, which is devoted to racism, the necessity of Jihad or something equally unpleasant. All the Members attending will be in favour of that. They will all be signing up by their attendance to some form of discussion of racism or terrorism and yet no one will complain because everyone there is in agreement. It is only outsiders and third parties who would complain that a Member is holding a meeting of that nature. Would that be covered by the code because the report states that only someone who has been offended should be able to complain?

We need further clarification but I hope that we will swiftly move to a state, which must come about sooner or later, where such complaints are determined in the end by a wholly non-Peer committee.

Photo of Baroness Hussein-Ece Baroness Hussein-Ece Liberal Democrat Lords Spokesperson (Equalities)

My Lords, last November we had rather an unedifying debate on the conduct of Lord Lester. After that debate, more than 70 members of House of Lords staff were so strongly moved by it that they put pen to paper and a public letter protesting that their concerns were not being addressed was published in the media. They were so alarmed by what took place here. Noble Lords will recall that the sentiment was expressed that harassment, sexual harassment and bullying were commonplace. How many of us would have known that that was the case? How many of us would even be aware that the staff here felt so strongly that they would come together and publish such a letter? It was quite unprecedented.

I think it was the noble and learned Lord, Lord Woolf, who said that this is a new phenomenon—that staff now come forward because harassment has increased. I disagree. I think staff—women and others—are now much more aware of their rights. They expect to be treated properly and fairly in their workplace. Be they employed by the House of Lords establishment or by individual Peers, they expect to be treated as they would be in any other forum in public life or when employed by any other public body. We have to respect that and rise to that challenge. That is why I support the report of the Privileges and Conduct Committee. It is a positive step from what we have already. I disagree with the noble Baroness, Lady Deech, that we cannot agree to this; we simply cannot leave the status quo as it is. It is not acceptable. We have all agreed that it is not acceptable and we need to move forward. This is going in the right direction. It is not perfect but we are waiting for the report in July. I hope that will throw up some more answers to the questions raised by noble Lords around the House this afternoon.

I am concerned that because this is about us as Peers and we sign the Code of Conduct, we are worried about how fairly we will be treated if we come up before a committee following a complaint. Of course we should be worried, but we should have confidence in the system. We are in positions of privilege and power, while the staff who work here are not. It is an unequal relationship, so we must make sure that the most junior member of staff in this place—the intern or the volunteer—has the confidence to make that complaint. As the noble Baroness, Lady Anelay, said, of course we must be wary of vexatious complaints, but someone would have to be pretty unusual to want to make a vexatious complaint and go through the kind of scrutiny that a lay person would have to go through. We know that there is underreporting rather than overreporting of these matters. We know from the staff who complained that it is commonplace. How many of them did not feel empowered enough to complain because they did not feel confident that they would be listened to or believed? Whatever we put in place, we must make sure that people who do not have a voice—who do not have access to a QC colleague or the means to employ somebody to defend them—have confidence that they will be treated equally to the Peer who is the subject of that complaint.

In the debates in November and December, the issue of cross-examination kept coming up. We are not talking about a court of law or a legal body. It would be a civil case and a civil procedure. To compare it to a court of law with cross-examination is not comparing like with like. In the previous debate, the noble Baroness, Lady Kennedy, made a very powerful point when she asked whether we could imagine a very junior member of staff being cross-examined by a leading QC. How on earth would he or she be able to afford to employ a QC to defend him or herself to balance it out? It just would not happen. The idea of cross-examination and testing is not the way forward. Investigating properly is the way forward. That is the way to test evidence: to receive it from both sides and make a decision on it. That is the best way forward. I hope that the House will support the committee. This is an interim report. It is not the final report but, my goodness, it is a step in the right direction compared with what we had before.

I heard what my noble friend and others said about Peers being on the committee. I would have expected Peers on the committee who knew the Peer being complained about to recuse themselves from taking part in this interim report. I could not imagine a situation in which any Peer would try to vote something down when they were clearly very close friends or colleagues of the Peer being complained about, but unfortunately that is what we saw last year in this Chamber in the case of Lord Lester. That was completely improper and it reflected very badly on us. It would never happen in local authorities up and down the country, where you would have to leave the room, never mind recuse yourself. You would not be allowed to take part in any decision that involved anyone who was a member of your family or a friend and so on. I think we were stretching matters last year in doing that, and we did not cover ourselves in glory.

We are moving away from that and going in the right direction. I hope that Members will consider that we want not only a very fair and transparent system but one that is seen to be fair by the public outside, who are scrutinising us more closely than ever. We need to rise to that challenge, so I support the report and I will be very interested in what comes forward in July. I hope we can get to a position where we all have confidence in this House’s procedures.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 4:15 pm, 30th April 2019

My Lords, I always follow very closely the words of the noble Baroness, Lady Hussein-Ece, because she has shown great courage over a few years in a number of contributions, particularly the speech that she gave about the Lester case. However, I profoundly disagree with her.

I also listened to the comments of the noble Baroness, Lady Anelay, who drew a distinction between the investigatory and the examinational approach to these matters. That is exactly the argument at the heart of what is going on in ICSA. People believe that ICSA will come to the wrong conclusions because of the process that it has adopted in its inquiries. However, that is another matter and it is relevant only in the sense that it deals with sexual offences.

Paragraph 122B on page 44 of the report says:

“When a member is being investigated in relation to allegations of bullying, harassment or sexual misconduct the identity of that member will not usually be made public until the publication of any report at the conclusion of proceedings (see paragraph 122)”,

which deals with it in some detail. I want to know what,

“not usually be made public until the publication”,

actually means. What criteria will govern whether the name of the Member concerned is made public? We are talking here about a person’s reputation, and in the case of Lord Lester the international reputation of a prominent lawyer. My view is simple. We need clear guidance about the circumstances in which the name of a Member will be made public when it may well be that at the end of the inquiry that Member is found to be totally innocent, yet his reputation will have been completely destroyed.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, I want to say a few words because, very unusually, I want to express a different view from that of my noble friend Lord Pannick, the noble Viscount, Lord Hailsham, and my noble friend Lady Deech.

Having taken part in the debates about Lord Lester, I of course recognise that when the House has the responsibility of reaching a verdict on the conduct of one of its own staff or Members and on any sanctions attaching thereto, it is vulnerable to the appearance of conflicts of interest. Quite understandably, this debate has concentrated on the subjects of bullying, harassment and sexual misconduct, which come into the code of conduct for the first time. But we have to remember that the code of conduct is hugely about other matters, not just those three; in fact, paragraphs 10 to 106 are about other matters that reflect the rules of the House.

Breaches of the code of conduct, including those in the future relating to bullying, harassment or sexual misconduct, will often be breaches of the criminal law. In those cases, it is obviously right that the inquiry should be entirely independent. It should be carried out by the police, have lawyers on each side and be subject to the courts of law.

In this case, even with our distaste for bullying, harassment and sexual misconduct, we are talking about something short of breaches of the criminal law. We are talking about the rules of the House. It seems anomalous that, in a self-regulating House, the ultimate decision on those breaches and the sanctions that attach to them should not be a matter for the House itself. I therefore agree with the report, which introduces a procedure in which there is an independent investigation and a committee with a significant element of independent members, but the discipline committee is chaired by a Member of the House and has a small majority of Members of the House on it. When we are talking about the rules of this body, like any other institution, it should ultimately be for this body to decide whether those rules have been broken and what sanctions should attach to it.

I welcome the respects in which the report makes changes. I welcome that it brings in bullying and sexual harassment, and I support the other changes, including the widening of the code of conduct to parliamentary activities, not just parliamentary duties. As I have said, I believe it is right that the discipline committee should have a small majority from the House because that seems consistent with a self-governing House. I also welcome the encouragement to the commissioner to call upon the support of teams of independent investigators to help establish the facts; in the case of Lord Lester, I felt that aspects of the way in which the commissioner carried out her investigation were defective.

One aspect of the report gives me pause—here, I follow the noble Lord, Lord Thomas of Gresford—and that is the proposed change to Standing Orders so that a report of the discipline committee is put to a vote of the House without debate. I see the dilemma here. On the one hand, like others, I am anxious to avoid the House getting involved in distasteful debates and votes, as in the case of Lord Lester. On the other hand, it seems that to vote on a question without any opportunity for debate is to go through the formality of obtaining the House’s assent without any reality in the substance; it is, to coin a phrase, “a meaningless vote”. Therefore, like the noble Lord, Lord Thomas of Gresford, I would prefer that the report of the disciplinary committee be subject to a take-note decision and not to a vote without debate.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Conservative

My Lords, I welcome the report. I see it as an important step forward. It is right that a new committee is established and I support that committee including lay members. Whether or not there should be more lay or independent members in due course is a topic for further consideration. I am not sure I support those noble Lords who have argued for complete independence for the disciplinary regime of this House, because it is an important responsibility for us as Members to uphold the House’s reputation by being prepared to take appropriate action when one of us does something wrong. As the noble Lord, Lord Butler, said, it would be a mistake for us to completely delegate responsibility for that to an independent body.

Paragraph 24 of the report mentions a disrepute clause. My position on this does not lend itself to the debate on investigation versus inquisition but, since the report refers to disrepute, I want to take the opportunity to highlight why I think it is important for us as a House to understand that we carry a reputational risk at the moment. If a Member’s misconduct outside this House is so serious that their continuing membership would bring the House as a whole into disrepute, currently we are powerless to act. This is compounded because, being an unelected House, we are powerless to act if a Member in such a situation does not resign. I am talking about disrepute in a way which refers to something happening outside a Member’s parliamentary responsibilities and activities—in another part of their life—but which is extremely serious and becomes public. If that person continued to be a Member of this House, it would bring the whole House into disrepute.

When I was Leader of your Lordships’ House, I spent about a year working on a disrepute clause and was assisted by several noble and learned Lords. This work was presented to the Privileges and Conduct Committee and was accepted by the committee at that time, but it never made it to the Floor of the House. It has remained in abeyance ever since. When making her argument about the need to specify what might constitute disrepute, the noble Baroness, Lady Deech, indicated, as does the report, that it is too difficult to define what would be captured by such a clause—I believe this is one of the reasons why this measure has never become part of our disciplinary actions. However, that somewhat misses the point. We should never have to define what would be caught by such a power. We need to understand that if and when something so serious occurs, we would have the power to act in the way the public expect, precisely because the public do not have the power to act themselves.

I just wanted to note the fact that there is reference to disrepute in the report and that I hope very much that when the new committee is established it will consider this as part of its overall work plan, to strengthen our disciplinary regime.

Photo of Viscount Hailsham Viscount Hailsham Conservative

The noble Baroness has identified a very considerable problem. It has been addressed by the regulatory authorities, which have a concept of impairment of fitness to practise. In the case of Grant, Mrs Justice Cox gave a very clear indication of what would constitute impairment of fitness to practise. That is a model that this House might care to reflect on, to address the point that the noble Baroness has just made.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Conservative

It would certainly be for the committee to consider how to approach this, but I make the point to the noble Viscount and the House more generally that the reason for not having a disrepute clause or the power to act if the conduct of one of us outside this House is so serious that for them to continue as a Member would bring the whole House into disrepute should not be because we have not been able to define specifically what would constitute such action. We should just have—and be able to show to the world outside that we have—that power to act in such circumstances that it is so obvious to us that that is what we should do.

Photo of Baroness Deech Baroness Deech Crossbench 4:30 pm, 30th April 2019

The point I actually made was about the difficulty of defining acting on your personal honour. I also remind the noble Baroness, who once had a very senior position at the BBC, that even the BBC, one of our most independent and proud organisations, known around the world almost as much as this House, had a very incestuous complaints-handling scheme. In the end it was handed over to Ofcom, because that is the way things are going. Even the BBC had to accept that.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Conservative

The reason why organisations pass responsibility in such circumstances to another body is because they have themselves failed to meet the expectations people rightly have of them. I am arguing that it may be that what some noble Lords have argued for in the context of the specifics of sexual misconduct, bullying and harassment is what should happen. Irrespective of that, it does not remove the need for this House to have the power to act in the circumstances as I have described them.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

My Lords, I think the House will know that for some years now I have had the honour of chairing the sub-committee. I promise I will not say a huge amount. I will first try to nail what I might call a loose point from the noble Lord, Lord Foulkes, about Lords Members’ staff. I might have got hold of the wrong end of the stick that he was waving, but on page 57, headed “Code of Conduct for House of Lords Members’ Staff”, paragraph 1 specifically describes the staff to whom these few paragraphs are directed. It applies to,

“staff who have a parliamentary photo-pass or email account sponsored by a member of the House of Lords for the purpose of providing parliamentary secretarial or research assistance to the member, including members’ spouses with an email account”.

If I have missed the point, so be it. No doubt he will pursue that matter later.

As today’s debate as a whole has shown, and as was perfectly apparent from the responses to the consultation process we had a month or so ago, there is room for a huge diversity of views on the huge number of interlocking issues, as the noble Lord, Lord Evans, said, that this report raises. Someone said there are 101 issues—a gross exaggeration: there are many more than that. The fact is that a lot of these questions overlap. Naomi Ellenbogen, Queen’s Counsel, who is, I understand, a member of the Bar Standards Board and is very well regarded, is to report at the end of July. She is hard at work on her report and seeing a number of people; I myself have been asked to see her in a couple of weeks’ time. I hope that one value of this debate is that she will be able to see the House’s views on a number of questions that have been raised.

There are one or two absolutely fundamental questions. One is whether we shall continue to operate an inquisitorial rather than adversarial process. There is no doubt an imperfect divide between the two, but that is a pretty basic question. Those such as the noble Viscount, Lord Hailsham, are in effect contending for an adversarial process. He helpfully nods to show it. There it is. It is obvious from the report that I, with colleagues on that committee, strongly support an inquisitorial approach.

A second basic question is whether the whole process should be totally independent of the House; again, there are those who contend for that. Can I throw into the mix one or two considerations? As we know, the House of Commons is operating on a 50:50 basis now, and following the recommendation of our sub-committee, it now gives its lay members a vote. There was a time when it was thought that giving lay members a vote would forfeit the privilege otherwise attached to these proceedings, but surely if you have an entirely independent process, with no Member of the House involved, you certainly do not attract parliamentary privilege. Now there are those—the noble Lord, Lord Thomas, among them—who would say, “Well, good thing, too”, and we are then subject to the review processes of the courts and all the rest of it. Again, I respectfully question whether that is a good idea. Certainly, the Commons does not seem to be thinking of going down that rather unusual route.

Another consideration is that if the whole thing is outside the control of this House and wholly independent, if and when it is necessary to impose some of these new statutory sanctions—expulsion, obviously, and suspension beyond the length of a current Parliament—there will have to be primary legislation, because at the moment it is the decision of the House to deal with these things. Therefore, one has to take a longer view than the idea of removing any involvement of this House. We all recognise that it is very desirable to have lay members. They introduce their external experience, and contribute greatly to the independence of the process. That too is helped here by the commissioner making the recommendation as to sanction, which at the moment she does not.

There is also the question of personal honour—and I can see that there is room for two views on this. The noble, Lord Thomas, suggested that it is difficult to define. It was a concept introduced by the noble and right reverend Lord, Lord Eames, in 2011, when the processes were last revised. It is the sense of the House, and therefore at the appellate stage you really would need some Members to be involved in overseeing it.

There are hosts of questions on the whole business of the process of investigation. I do not want to go into that. I say only that it is rather bizarre that of those who question the ability of our independently appointed commissioner and criticise her as being unable to conduct this process satisfactorily, and instance the Lester case, almost no one went to see all the factual material, including the transcripts, although there was an open invitation to do so. My noble friend Lady Deech did, after the debate, but before the debate only two people actually troubled to go and look at that material. One was the noble Lord, Lord Macdonald of River Glaven—who then made a speech saying that having looked at the transcripts of the commissioner’s interviews of the central witnesses, he was entirely satisfied that the procedure had been properly conducted. I do not want to go too far down this road, but he has a measure of experience as an erstwhile DPP, so I would caution those who want to begin altering what I suggest is a perfectly satisfactory inquisitorial process into something which is dangerously akin to an adversarial process.

I will make one point in respect of the specific arguments of the noble Lord, Lord Pannick. When you get to the appeals stage, I see that there may be room—I suggest that perhaps there already is, although you would need to have a Motion changing the Standing Orders before you can get there—and there may be a stronger case than was hitherto acknowledged for allowing some measure of representation, certainly in the case of any Member of the House who cannot properly conduct his own appeal. That criticism aside, I respectfully suggest that this report is a huge improvement on what has been previously accepted and I urge your Lordships to accept it.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I cannot let this opportunity go past without saying how strongly I support what my noble friend Lady Hussein-Ece said. Particularly in cases of bullying and sexual harassment, the power imbalance has to be taken into account, and the only proper way of investigating such cases is with an inquisitorial rather than an adversarial system. I understand that lawyers in the House have lived and breathed—and lived by—the adversarial system, but there are circumstances in which it is not appropriate, and I believe that, in those particular cases, it is entirely inappropriate.

Photo of Baroness Berridge Baroness Berridge Conservative

My Lords, I wish very briefly to add to this debate. I have sat through the entirety of this debate because I believe, on behalf of this House but also on behalf of the staff, that it is a very important matter. I often have the privilege of addressing young people through the education department, who say to me: “Describe a day in your life in the House of Lords”. Today, my day began with the hearing of the Ecclesiastical Committee, which is linked to what we are discussing. We are not the only institution struggling at this time to work out processes that enable people to come forward but that are just, so that they do not crush the people against whom the complaints are made in that very process.

As a lawyer by profession, I know that “vexatious” was often used in relation to particular litigants; it was not necessarily vexatious litigation. Vexatious litigants are those who repeatedly make claims that are malicious or unfounded. Eventually, the courts often act against them to prevent them bringing claims. I very much doubt that the HR processes and recruitment processes of this House are such that we will have vexatious litigants on staff. There may be unfounded claims or claims where it is not possible to reach a conclusion, and there may be the very, very occasional malicious complaint. But I do not think, and I would not want the staff of this House to think, that there could be vexatious litigants generally working for us here. I would be grateful if the Senior Deputy Speaker could outline what support is open to staff. I hope that many staff are members of a union. Unions do not just provide lawyers; they often provide the appropriate support to staff who are in the position of having to make such a complaint.

Having sat here, I have reflected on the complaints which I have been aware of in recent years. They have often related to Members and their engagement with people whom they meet through a common interest; so it is in the context of people from outside. When looking at trying to shield ourselves from complaints that might be unfounded, Members have a whole array of tools to do that within their professional life. One-on-one meetings should by practice be held in public and not in your office. So I really do not think that there are deep grounds for concern about complaints being ill founded or vexatious—but, as I have reflected, most of the cases have come from that one-on-one personal contact through a shared interest.

It is a great sadness. I struggle to put myself in the place of a junior member of staff here who feels that they have been treated in the manner outlined, with bullying, harassment or sexual misconduct. I hope that all Members, if they witnessed anything of this nature, would take the role of balancing out that power imbalance and taking action immediately if they saw any of this kind of behaviour. That is also part of our responsibility, as well as having a process that is just to the complainant and to the Member.

Photo of Lord Hogan-Howe Lord Hogan-Howe Crossbench 4:45 pm, 30th April 2019

My Lords, I had not intended to speak but I will, perhaps for the same reason that the noble Lord, Lord Pannick, did. The noble Baroness, Lady Hussein-Ece, does not need my support, but I offer it. I echo the noble Lord, Lord Campbell-Savours, in commending her courage, but I came to an entirely different conclusion based on the same evidence. I agreed with almost every word that she said.

My first point is on inquisitorial compared to adversarial. The people who support adversarial seem to agree that the process can potentially damage someone’s reputation, but they forget that the 99% of people in this country who are employees can suffer a similarly damaging consequence: namely, loss of employment. Their employer can make a decision to remove them from their employment, which will damage their reputation, and they may not have the benefit of a lawyer. As it happens, a police officer does, because they are not an employee; they are governed by police regulations. This is more akin to an employment issue than to a crime. The consequence is not going to prison for life but being deprived of the use of this place and of the titles and privileges that go with it.

My second point is on cross-examination, which clearly has had many benefits over time but is not infallible. Some of the most serious miscarriages of justice in this country have resulted from processes that have involved cross-examination and yet have not discovered the truth. As we have had to readdress in the last 48 hours, it has also damaged some victims, because the process can go on to destroy the victim, not necessarily always to defend the suspect. These things are changing, but we have to accept that this has happened over time.

I end where the noble Baroness, Lady Hussein-Ece, and the noble Lord, Lord Evans, did. This is not a perfect process: I would support far more—possibly total—independence going forward, because we need to prove to the outside world that, contrary to perception, we are prepared to stand the judgment of our peers outside, not our Peers inside. July is only a matter of weeks away, so we need a far better interim process in place to have succour for ourselves. I sat here in November and got increasingly angry, sad and uncomfortable. I have been in the House for only two years, but I thought it was awful. We should not go through that again. I think all noble Lords accept that, on reflection, we could have acted better. Some—including the noble Baroness, Lady Jones, who is not in her place—acted courageously. Before we go to the adversarial system, we need to think seriously about how others see us as well as how we can improve our process, which this report intends to do.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, at this late stage I shall be very brief—I confess of course that I am a lawyer—and say something about adversarial and inquisitorial, because there may be some misconceptions. I am delighted to hear that there will be a panel of investigators. I would expect most of them not to be lawyers, but to be able to do practical investigation. That seems to be entirely sensible. We need to differentiate between the different sorts of cases. There will be cases of harassment or bullying, which are nasty and will possibly require suspension from the House. There will occasionally be cases such as Lord Lester’s. It is in relation only to that type of case that something slightly different should take place. As the noble and learned Lord, Lord Woolf, said, it is not a good idea to have the person who is adjudicating also being the investigator. There are problems in that. I am not criticising the current commissioner; I just think that she could have done with some help.

I have a suggestion about the best thing in the very difficult case of a stark difference of evidence, where one has to resolve who is telling the truth; because only one person can be in such a—thankfully rare—case. In such a case the investigator should, in my view, be a lawyer. However, it is appropriate only in that rare case, where the reputation of the victim is important, but so is the reputation of the Peer, who is almost certainly going to be excluded from the House for ever and whose reputation will be completely destroyed. At that point, you do not want cross-examination as such, but you need a sensible, discreet member of the Bar who can ask appropriate questions, without being disagreeable about it, to try to ascertain the truth from the parties who are being asked these questions. I put it to the House that there are rare cases where the commissioner may need the help of a lawyer rather than the ordinary investigator we are talking about.

Photo of Lord Pannick Lord Pannick Crossbench

Does my noble and learned friend agree that, in her experience, many inquisitorial processes take place throughout the country, on a wide variety of subjects, where lawyers are involved and there is a degree of cross-examination by counsel to the inquiry and lawyers representing the individuals? The fact that it is inquisitorial does not mean that those protections are removed.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I entirely agree. I have chaired commissions, committees and so on, particularly the Cleveland child abuse inquiry, where there were a great many lawyers. I am not suggesting any of that for this, but I think we need to adjust the way in which the issue is tried according to its seriousness and the likely outcome, if it goes the wrong way, for the Member of this House who will be permanently excluded.

Photo of Lord McFall of Alcluith Lord McFall of Alcluith Chair, Freedom of Information Advisory Panel (Lords), Chair, Hybrid Instruments Committee (Lords), Chair, Liaison Committee (Lords), Chair, Committee for Privileges and Conduct (Lords), Chair, Procedure Committee (Lords), Chair, Committee of Selection (Lords), Chair, Standing Orders (Private Bills) Committee (Lords), Chair, Sub-Committee on Leave of Absence, The Senior Deputy Speaker

My Lords, I thank the 17 Members who have contributed to the debate. I have notes to respond to every one of the 17, but I know I will be stretching the patience of the House if I start to do that, not least because the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the chair of the sub-committee that devised these proposals for the P&C committee, has expanded on that issue.

I commend the House today for the constructive debate and the spirit in which it was held. It underlines the fact that this is a significant move forward. We have near unanimity, with 16 people telling us it is going in the right direction and one person saying that it is maybe going in the wrong direction. That near unanimity is extremely important.

I want to comment on the contribution of the noble Lord, Lord Evans of Weardale, who, in his position as chairman of the independent Committee on Standards in Public Life, has met me on two occasions. He sent us a letter as part of the House of Lords consultation on the implementation of the process, among 27 others who responded. I shall read just one sentence from that letter:

“Any self-regulatory regime must include a strong, resilient and robust independent element”.

The spirit of today’s debate shows that we have done that.

I mentioned at the beginning that this process is not finished. Naomi Ellenbogen has been mentioned; I shall be meeting her next week. She has asked to meet me and others in the House and I do not see why others, if they wish, should not contact her. I believe that some 121 people have approached her and that she has spoken to more than 170. The more people she speaks to, the better, and I encourage Members to do that.

A couple of comments were made about staff and support for staff—I think by the noble Baroness, Lady Berridge. When I received the letter from the 74 members of staff, I spoke to quite a few individually; they were depending on our putting in a robust process. All I can say is that, without going back to them in detail on that, my feeling is that they feel that we are taking a step forward; so both Members and staff feel that something positive is happening here.

A point was made about what support there is. Helplines are envisaged and there is support for mediation. There is also the issue of signposted professionals. The professionals who have been engaged here have been in this field of mediation for a long time, and the information we have, in both the Commons and the Lords, is that they will support the process. This has balanced the relationship between complainant and Members; it is important that both have the support of the House. I am confident that we will get a new system, but until the new conduct committee is established, I will be happy to engage with people and pass on what is said. However, if your Lordships pass this Motion today, this will be my last time at the Dispatch Box on this issue. I thank all noble Lords for their contributions and for the spirit of the debate today.

Motion agreed.